Opinion
B313126
02-22-2023
THE PEOPLE, Plaintiff and Respondent, v. DANIEL LEE HAXTON, Defendant and Appellant.
Robert A. Werth, 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, Blythe J. Leszkay and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. MA075418, Robert G. Chu, Judge.
Robert A. Werth, 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, Blythe J. Leszkay and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
EGERTON, J.
Defendant Daniel Lee Haxton pleaded no contest to, among other offenses, 13 counts of grand theft of a firearm. The court sentenced him to 12 years and 4 months in prison. On appeal, Haxton argues he could not be convicted of more than a single count of grand theft because the undisputed evidence shows he stole all the firearms from the same victim during the same burglary. Haxton also argues his case must be remanded forresentencing in accordance with Senate Bill No. 567 (20212022 Reg. Sess.) (Senate Bill 567). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The People filed a felony complaint charging Haxton with burglary (Pen. Code, § 459), 13 counts of grand theft of a firearm (§ 487, subd. (d)(2)), and 14 counts of illegal possession of a firearm by a felon (§ 29800, subd. (a)(1)). For each grand theft count, the People alleged Haxton stole a firearm belonging to Gunrunners Firearms (Gunrunners) "[o]n or between July 29, 2017 and July 30, 2017."
Statutory references are to the Penal Code.
At the preliminary hearing, Detective Mark Madrid testified that a Gunrunners employee reported a burglary on July 30, 2017. The employee believed 14 firearms had been stolen from the store. A surveillance video showed that around 6:00 a.m. on July 30, 2017, a truck pulled open the doors to the Gunrunners building, and a person went inside the store. Madrid subsequently interviewed Haxton, who admitted stealing the firearms. Haxton said he hid one firearm under a bush in Lancaster and he gave the other firearms to Patrick Woolman, who sold them.
The court found sufficient evidence to believe Haxton committed the charged crimes. The People then filed an information generally mirroring the charges in the complaint. Haxton pleaded not guilty to each charge.
In June 2020, the court granted Haxton's motion to represent himself. Haxton subsequently filed a Kellett motion to dismiss the charges, which the court denied.
In Kellett v. Superior Court of Sacramento County (1966) 63 Cal.2d 822, the Supreme Court held "[w]hen . . . the prosecution is or should be aware of more than one offense in which the same act or course of conduct plays a significant part, all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or severance permitted for good cause. Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence." (Id. at p. 827.)
In May 2021, Haxton told the court he intended to plead no contest to the charges. The prosecutor noted that, based on an off-the-record conversation, it seemed Haxton believed that "[section] 654 or similar doctrines and statutes would cause his potential sentencing to be much lower than the People believe it potentially is."
The court informed Haxton he faced a maximum sentence of 21 years in prison, and it asked Haxton if he still wanted to plead open. Haxton replied that he did, noting, "I cannot beat that case in trial, and I'm going to get that time anyway, and I don't want it to influence the unrelated charges" in another pending case. Haxton also asked the court to sign a certificate of probable cause "in regards to Kellett," which the court agreed to do.
Haxton waived his rights and pleaded no contest to all 28 counts. He also admitted having a prior felony conviction under Vehicle Code section 10851, subdivision (a).
At sentencing, Haxton argued the court should sentence him on only one count of grand theft under the general rule that the theft of multiple items constitutes a single offense. The prosecutor responded that each theft of a firearm constituted a separate offense "[b]ecause of the nature of the property stolen in this case and the intent ...." The court indicated it agreed with the prosecutor that each theft was a separate act.
Haxton stipulated that the court could consider the probation report to determine his sentence. The court then sentenced Haxton to 12 years and four months in prison.
For the base term, the court selected the upper term of three years on one of the grand theft counts (count 2). The court explained it selected the upper term because of the "nature of the case" and Haxton's extensive criminal history. According to the court, Haxton "has a criminal history beginning from when he was a juvenile and as an adult from 1998 all the way up until 2017 on the present matters. He's been convicted of theft, burglary, a felon in possession of a firearm, receiving stolen property. And . . . based on the nature of the cases that I have in front of the court and the facts the court does find that [the] high term is appropriate ...."
The court imposed consecutive terms of eight months (one-third the midterm) on the 12 remaining grand theft counts, the burglary count, and one felon-in-possession count. On each of the remaining felon-in-possession counts, the court sentenced Haxton to eight months (one-third the midterm), which it stayed under section 654.
At Haxton's request, the court signed a certificate of probable cause, which identifies the following issues: "Multiple prosecutions for same act or course of conduct-Kellett error[;] Illegal sentence consecutive sentences for single act violation of single larceny rule and [Penal Code section] 654." Haxton timely appealed.
DISCUSSION
1. Haxton's pleas preclude him from challenging his grand theft convictions
Haxton argues that, under the single larceny doctrine, the People could not charge him with, and he could not be convicted of, more than a single count of grand theft of a firearm. The Attorney General contends Haxton's pleas preclude him from raising this issue on appeal. We agree with the Attorney General.
"[T]he single larceny doctrine holds that when a defendant steals multiple items during the course of a single act or indivisible transaction involving a single victim, he commits only one theft, notwithstanding the number of items he steals." (People v. Calistro (2017) 12 Cal.App.5th 387, 394; see People v. Ortega (1998) 19 Cal.4th 686, 699.) In People v. Bailey (1961) 55 Cal.2d 514, our Supreme Court explained that "[w]hether a series of wrongful acts constitutes a single offense or multiple offenses depends upon the facts of each case, and a defendant may be properly convicted upon separate counts charging grand theft from the same person if the evidence shows that the offenses are separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan." (Id. at p. 519.) This determination "requires a fact-specific inquiry that depends on an evaluation of the defendant's intent. [Citation.] Such an inquiry is appropriately left to the factfinder in the first instance." (In re Arthur V. (2008) 166 Cal.App.4th 61, 69; see People v. Jaska (2011) 194 Cal.App.4th 971, 983-984 (Jaska) ["Whether multiple takings are committed pursuant to one intention, one general impulse, and one plan is a question of fact for the jury based on the particular circumstances of each case."].)
We review challenges under the single larceny doctrine for substantial evidence, asking whether there is sufficient evidence to support a finding that the defendant harbored multiple objectives. (Jaska, supra, 194 Cal.App.4th at p. 984.) We will apply the doctrine "as a matter of law only in the absence of any evidence from which the jury could have reasonably inferred that the defendant acted pursuant to more than one intention, one general impulse, or one plan." (Ibid.; see People v. Reid (2016) 246 Cal.App.4th 822, 831-832.)
We cannot perform such a review in this case, however, because Haxton pleaded no contest to the charges before trial. The legal effect of a no-contest plea to a felony is the same as that of a guilty plea. (§ 1016, subd. 3.) A guilty plea constitutes an admission of every element of the charged offense and matters essential to the conviction and obviates the need for the prosecution to come forward with any evidence. (People v. Turner (1985) 171 Cal.App.3d 116, 125-126 (Turner).) It "concedes that the prosecution possesses legally admissible evidence sufficient to prove defendant's guilt beyond a reasonable doubt. Accordingly, a plea of guilty waives any right to raise questions [on appeal] regarding the evidence, including its sufficiency or admissibility, and this is true whether or not the subsequent claim of evidentiary error is founded on constitutional violations." (Id. at p. 125.)
People v. Hughes (1980) 112 Cal.App.3d 452 is instructive. In that case, the People initially charged the defendant with 23 separate counts of forgery, but later amended the information to consolidate the charges into a single count. The defendant pleaded no contest to the charge, and the court imposed a six-year sentence, which included an enhancement based on a special allegation that the defendant took property in excess of $100,000. (Id. at pp. 455-456.) On appeal, the defendant argued the consolidation of the charges and the court's imposition of the enhancement were improper because he committed 23 separate offenses, each involving a theft below the $100,000 threshold for the enhancement. The court concluded the defendant waived the issue by pleading no contest to the forgery count. The court explained that "[i]mplicit in the district attorney's aggregation of 23 transactions into one forgery count is the notion that appellant engaged in an indivisible course of conduct and committed but one offense. Whether this was true is a question of the intent and objective of the actor. [Citation.] This is a question of fact which appellant must be deemed to have waived by his plea." (Id. at pp. 460-461.)
The same is true here. By charging Haxton with 13 counts of grand theft, the prosecution implicitly represented it could prove he committed 13 separate offenses. Haxton's no-contest pleas to all 13 counts conceded the prosecution possesses sufficient evidence to prove his guilt as to each. That includes evidence proving the offenses are separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan. In other words, by pleading no contest, Haxton conceded the prosecution possesses sufficient evidence that he committed 13 separate thefts, rather than a single theft. This concession is determinative and precludes Haxton from raising the single larceny doctrine issue on appeal.
Haxton suggests his pleas are irrelevant because, based on the undisputed facts in the record, the single larceny doctrine applies as a matter of law. In support, he relies on the prosecution's evidence from the preliminary hearing, which he asserts shows he stole all 13 firearms from the same victim, during the same burglary, and with the same intent. According to Haxton, this evidence conclusively proves he committed a single theft, which precluded the prosecution from charging him with multiple theft offenses arising out of the Gunrunners burglary.
Although Haxton insists otherwise, his argument is essentially a challenge to the sufficiency of the prosecution's evidence at the preliminary hearing. Haxton, however, forfeited that issue twice: first, by failing to file a motion to set aside the information under section 995 (see People v. Sherwin (2000) 82 Cal.App.4th 1404, 1411 [a defendant may challenge the sufficiency of the evidence at a preliminary hearing by filing a motion under section 995]; § 996 ["If the motion to set aside the indictment or information is not made, the defendant is precluded from afterwards taking the objections mentioned in Section 995."]), and again by pleading no contest to the charges (see Turner, supra, 171 Cal.App.3d at p. 125 [a guilty plea waives any right to raise questions regarding the sufficiency of the evidence]; see also People v. Warburton (1970) 7 Cal.App.3d 815, 822 [a no-contest plea waives a challenge to the lack of probable cause to return an indictment]).
Regardless, even assuming the evidence from the preliminary hearing shows Haxton committed a single theft, it does not follow that he could be charged with, or convicted of, only a single count of grand theft as a matter of law. Had the court dismissed 12 of the 13 theft counts based on insufficient evidence at the preliminary hearing, the People could have simply refiled the dismissed charges and presented additional evidence. (See § 1387.) Haxton also overlooks that, had the case proceeded to trial, the prosecution would have been free to present additional evidence to prove he committed 13 separate thefts. By pleading no contest to the charges, Haxton essentially conceded that, regardless of whether the prosecution presented sufficient evidence on the issue at the preliminary hearing, it could have done so at trial.
Haxton alternatively contends his appeal is cognizable under section 1237.5 because he is challenging the power of the state to try him despite his guilt. Section 1237.5 sets forth two conditions that must be met before a defendant who pleads no contest may appeal. First, the defendant must file in the trial court a written statement identifying "reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings." (§ 1237.5, subd. (a).) Second, the trial court must execute and file a certificate of probable cause for the appeal. (Id., subd. (b).) In effect, these requirements limit the issues a defendant may raise on appeal following a no-contest plea to those that concern the legality of the underlying proceedings. (Turner, supra, 171 Cal.App.3d at p. 126.)
Contrary to Haxton's contentions, his appeal does not concern the power of the state to try him despite his guilt. Rather, his argument is that, under the particular facts of this case, he is not guilty of 12 of the 13 theft offenses to which he pleaded no contest. This is essentially a challenge to the sufficiency of the evidence; it does not concern the legality of the proceedings. Haxton's no-contest pleas, therefore, preclude him from raising the issue on appeal. (See § 1237.5, subd. (a).)
We similarly reject Haxton's suggestion that he preserved the issue by raising it in the trial court and obtaining a certificate of probable cause. At the outset, the record does not show that Haxton raised this particular issue below. At sentencing, he argued that, under the single larceny doctrine, the trial court could not sentence him on all 13 counts of grand theft. In the certificate of probable cause, he similarly asserted the trial court imposed "[i]llegal . . . consecutive sentences for single act violation of single larceny rule and [Penal Code section] 654." Haxton raises a different issue on appeal: he contends he could not be charged with, or convicted of, 12 of the 13 counts of grand theft. Whether a defendant can be charged with and convicted of certain offenses, and whether he can be punished for those offenses, are separate issues. (See, e.g., People v. Gonzalez (2014) 60 Cal.4th 533, 535 [holding a defendant could be convicted of both oral copulation of an unconscious person and oral copulation of an intoxicated person, but could not be punished for both].)
Regardless, whether Haxton raised the issue below and identified it in the certificate of probable cause is irrelevant. As Haxton acknowledges, obtaining a certificate of probable cause does not entitle him to raise any issue on appeal; he still must comply with section 1237.5. (Turner, supra, 171 Cal.App.3d at p. 126.) As explained above, Haxton's argument is essentially a challenge to the sufficiency of the evidence, rather than a challenge to the legality of the proceedings. Therefore, regardless of whether he raised the single larceny doctrine issue below or identified it in the certificate of probable cause, section 1237.5 precludes him from raising the issue on appeal.
2. Remand for resentencing under Senate Bill 567 is not necessary Haxton contends his case must be remanded for resentencing in accordance with Senate Bill 567.
In his opening appellate brief, Haxton also refers in passing to Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Assembly Bill 124). Effective January 1, 2022, Assembly Bill 124 amended section 1170 to provide: "[U]nless the court finds that the aggravating circumstances outweigh the mitigating circumstances [such] that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term" if certain, enumerated circumstances were contributing factors in the commission of the offense. Haxton does not argue that any of the listed circumstances were contributing factors in the commission of his offenses. Accordingly, we do not consider the issue.
When the trial court sentenced Haxton, section 1170 provided that "[w]hen a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court." (Former § 1170, subd. (b).) Under this provision, the trial court was free to impose an upper term sentence based on any aggravating circumstances it deemed significant, so long as they were reasonably related to the decision being made. (People v. Moberly (2009) 176 Cal.App.4th 1191, 1196.)
While Haxton's appeal was pending, Senate Bill 567 took effect. It restricts a trial court's discretion to impose an upper term sentence. Effective January 1, 2022, "[t]he court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial." (§ 1170, subd. (b)(2).) The court also may "consider the defendant's prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury." (Id., subd. (b)(3).)
The parties agree-as do we-that, because Haxton's case was not yet final when Senate Bill 567 went into effect, he is entitled to the retroactive benefit of the ameliorative legislation. (See In re Estrada (1965) 63 Cal.2d 740, 744-745; People v. Flores (2022) 73 Cal.App.5th 1032, 1039.) The only question is whether remand for resentencing is required. We conclude it is not.
At sentencing, the trial court explained that it relied on two circumstances to impose an upper term sentence on count 2: (1) the nature of the present case; and (2) Haxton's criminal history. Haxton does not contend the court violated Senate Bill 567 by considering either factor. Nor could he. The probation report details the circumstances of the present offenses as well as Haxton's extensive criminal history. Because Haxton stipulated that the court could consider the information in the report for purposes of sentencing, the court acted in accordance with the requirements of Senate Bill 567. (See § 1170, subd. (b)(2) [a court may consider facts stipulated to by the defendant].)
Nevertheless, Haxton argues we must remand the case because the trial court might exercise its sentencing discretion differently in light of Senate Bill 567's "drastic" changes to section 1170. He fails, however, to identify any changes made by the legislation that are likely to alter the court's sentencing choices. As Haxton seems to concede, if we were to remand the case, the trial court could consider the same factors it relied on when it originally sentenced him. Because Senate Bill 567 does not concern the weight the court must give those factors, there is no reason to suspect the court would impose a different sentence on remand. Under these circumstances, there is no need to remand for resentencing. (See People v. McDaniels (2018) 22 Cal.App.5th 420, 425 [remand for resentencing is not required if the record shows the trial court would not exercise its discretion differently].)
DISPOSITION
We affirm the judgment.
We concur: LAVIN, Acting P. J., RICHARDSON (ANNE K.), J. [*]
[*]Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.