Opinion
F040850.
11-21-2003
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL WILSON MOORE, Defendant and Appellant.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Robert P. Whitlock and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Michael Wilson Moore appeals for the second time from his sentence of 35 years to life. In the first appeal (People v. Moore (Jan. 14, 2002, F037872), we upheld the judgment but vacated the sentence. We concluded in that opinion that there was insufficient evidence to support the true finding that his conviction in federal court for bank robbery met the statutory definition of a serious felony. (Pen. Code, §§ 667, subd. (d)(1), 1192.7, subd. (c)(19).)
All statutory references are to the Penal Code unless otherwise indicated.
After remand, the People relied on the same evidence but suggested the enhancement could be found true because Moore personally used a firearm during the federal bank robbery. (§§ 667, subd. (d)(1), 1192.7, subd. (c)(8).) The prosecutor also argued that our initial opinion was decided incorrectly because of a change in the law that we failed to recognize. The trial court agreed that the enhancement could be found true because Moore personally used a firearm while committing the federal bank robbery and imposed the same sentence.
Moore argues that the doctrine of law of the case precludes imposing the enhancement in this case because the prosecutor relied on the same evidence that we found insufficient to support a true finding in the first appeal.
We find ourselves in an unusual position. The ground on which the trial court relied to impose the enhancement represents a change in theory. The law of the case doctrine precludes such action. (Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 312.) The People could have presented this theory to the trial court at the first sentencing. It is now too late to do so.
Yet, we have reviewed the authority on which we relied in the first appeal to vacate the true finding on the federal bank robbery charge and conclude that we erred. The Legislature amended section 1192.7 in 1988 and, by doing so, effectively overruled the cases on which we based our opinion. We think that in these circumstances, application of the law of the case doctrine would result in an unjust decision. Accordingly, we will not apply the doctrine and will affirm the sentence.
FACTUAL SUMMARY
Moore was convicted of three counts of second degree robbery arising out of a single robbery at a bank. (Pen. Code, § 212.5, subd. (c).) In addition, the trial court found that Moore had suffered three prior convictions that were serious felonies (strikes) pursuant to section 667, subdivision (d)(1). The trial court also found that two of these prior convictions were serious felonies within the meaning of section 667, subdivision (a). Moore was sentenced to concurrent three strike terms of 25 years to life for each count and 10 additional years for the section 667, subdivision (a) enhancements.
DISCUSSION
Moore argues that the federal bank robbery conviction did not constitute a serious felony conviction within the meaning of section 667. Since the trial court found three prior strikes, even if Moore is correct, his three strike sentence will stand. The only issue is whether one of the five-year enhancements imposed pursuant to section 667, subdivision (a) may stand, i.e., whether either 5 or 10 years will enhance his sentence of 25 years to life.
Section 667, subdivision (a) provides that the trial court must impose an additional term of five years for each prior serious felony conviction incurred by a defendant. Serious felony convictions are defined, in part, as any offense defined in section 1192.7, subdivision (c) as a serious felony. (§ 667, subd. (a)(4).) A serious felony also is defined as any offense committed in another jurisdiction that includes all of the elements of a serious felony in California. (§ 667, subd. (a)(1).)
We found in the first appeal that the federal bank robbery conviction (18 U.S.C. § 2113(a) & (d)) did not constitute a serious felony because it did not include all of the elements of a California conviction. The discrepancy lies with intent. A bank robbery conviction under the federal statute requires only a general intent. (United States v. Smith (9th Cir. 1981) 638 F.2d 131, 132.) Under California law, a conviction for robbery requires the prosecution to prove the defendant had a specific intent permanently to deprive the victim of the property taken from his or her possession. (People v. Visciotti (1992) 2 Cal.4th 1, 67; People v. Ford (1964) 60 Cal.2d 772, 792-793, overruled on other grounds in People v. Satchell (1971) 6 Cal.3d 28, 36-41, overruled on other grounds in People v. Flood (1998) 18 Cal.4th 470, 490.) We remanded to allow the People to present additional evidence to support their contention that the conviction was a serious felony.
The People returned to the trial court and, relying on the same evidence, argued the evidence was sufficient because this court failed to recognize the 1988 amendment to section 1192.7. The People also argued there was sufficient evidence that the federal bank robbery conviction qualified as a serious felony because Moore used a firearm during the commission of that crime. Under section 1192.7, subdivision (c)(8), any felony in which the defendant personally uses a firearm is a serious felony.
Moore contended that the People did not present any new evidence, only new arguments, and therefore the doctrine of law of the case precluded a finding that the federal bank robbery conviction was a serious felony. The trial court disagreed and sentenced Moore to the same term.
I. The Amendment to Section 1192.7
Section 1192.7 was added to the Penal Code by initiative in 1982. As originally enacted, it listed 25 crimes as serious felonies. One of the serious felonies was robbery. (§ 1192.7, subd. (c)(19).) As stated above, in California robbery requires that the defendant have the specific intent permanently to deprive the person of the property taken from his or her possession. (People v. Visciotti, supra, 2 Cal.4th at p. 67; People v. Ford, supra, 60 Cal.2d at pp. 792-793.)
The requirement of specific intent led the appellate courts in People v. Ellis (1987) 195 Cal.App.3d 334 and People v. Leever (1985) 173 Cal.App.3d 853 to conclude that a federal bank robbery conviction was not a serious felony. These cases concluded that a conviction or guilty plea to federal bank robbery did not contain all of the elements of the California robbery statute since only general intent need be proven and thus not every element of the California crime was proven beyond a reasonable doubt. (People v. Ellis, supra, 195 Cal.App.3d at pp. 339-340; People v. Leever, supra, 173 Cal.App.3d at pp. 872-873.)
Since the addition of section 1192.7 to the Penal Code, the list of serious felonies has been increased by the Legislature several times. For example, section 1192.7, subdivision (c) originally listed only 25 crimes as serious felonies; there are now 42 crimes designated as such. (§ 1192.7, subd. (c).) The amendment with which we are concerned is the 1988 amendment that apparently was added in response to Ellis and Leever.
The 1988 amendment amended section 1192.7, subdivision (c)(19) to include bank robbery as a serious felony and defined bank robbery in section 1192.7, subdivision (d). (Stats. 1988, ch. 432, § 2, pp. 1815-1816.) This definition closely parallels the definition of bank robbery found in the federal statute. (18 U.S.C. § 2113.) As a result, the appellate court in People v. Guerrero (1993) 19 Cal.App.4th 401, 405-407 held that federal bank robbery was a serious felony in California.
Section 1192.7, subdivision (d), as used in this section, defines "bank robbery" as a "means to take or attempt to take, by force or violence, or by intimidation from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association.
"As used in this subdivision, the following terms have the following meanings:
"(1) `Bank means any member bank of the Federal Reserve System, and any bank, banking association, trust company, savings bank, or other banking institution organized or operating under the laws of the United States, and any bank the deposits of which are insured by the Federal Deposit Insurance Corporation.
"(2) `Savings and loan association means any federal savings and loan association and any `insured institution as defined in Section 401 of the National Housing Act, as amended, and any federal credit union as defined in Section 2 of the Federal Credit Union Act.
"(3) `Credit union means any federal credit union and any state-chartered credit union the accounts of which are insured by the Administrator of the National Credit Union Administration."
Title 18 United States Code section 2113 states, "( a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or
"Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank, credit union, or such savings and loan association and in violation of any statute of the United States, or any larceny—
"Shall be fined under this title or imprisoned not more than twenty years, or both. [¶] ... [¶]
"(f) As used in this section the term `bank means any member bank of the Federal Reserve System, and any bank, banking association, trust company, savings bank, or other banking institution organized or operating under the laws of the United States, including a branch or agency of a foreign bank (as such terms are defined in paragraphs (1) and (3) of section 1(b) of the International Banking Act of 1978), and any institution the deposits of which are insured by the Federal Deposit Insurance Corporation.
"(g) As used in this section the term `credit union means any Federal credit union and any State-chartered credit union the accounts of which are insured by the National Credit Union Administration Board, and any `Federal Credit Union as defined in section 2 of the Federal Credit Union Act. The term `State-chartered credit union includes a credit union chartered under the laws of a State of the United States, the District of Columbia, or any commonwealth, territory, or possession of the United States.
"(h) As used in this section, the term `savings and loan association means—
"(1) a Federal savings association or State savings association (as defined in section 3(b) of the Federal Deposit Insurance Act (12 U.S.C. 1813(b))) having accounts insured by the Federal Deposit Insurance Corporation; and
"(2) a corporation described in section 3(b)(1)(C) of the Federal Deposit Insurance Act (12 U.S.C. 1813(b)(1)(C)) that is operating under the laws of the United States."
"[W]e conclude that the language utilized by the Legislature in California in amending section 1192.7, subdivisions ( c) and (d), effective January 1, 1989, unequivocally demonstrated it was intended that the federal bank robbery statute, without its specific intent requirements, to be a serious felony for enhancement purposes. In section 1192.7, subdivision ( c)(19) the Legislature chose to define a serious felony as `robbery or bank robbery .... In section 1192.7, subdivision (d), the Legislature defined `"bank robbery" but never did so by requiring a specific intent. Defendant has cited us to no legislative intent materials which would suggest the Legislature in using language that carefully tracked the federal statute, which does not require a specific intent, desired to mandate that the prosecution prove that the prior conviction involve the intent to permanently deprive a victim of the property. In fact, the exact opposite conclusion is readily apparent — the Legislature obviously intended that 18 United States Code section 2113(a) be a serious felony." (People v. Guerrero, supra, 19 Cal.App.4th at p. 410.)
The 1988 amendment thus resolved the general intent versus specific intent issue.
In the first appeal, Moore did not challenge the sufficiency of the evidence to prove that the federal bank robbery conviction was a serious felony pursuant to section 1192.7, subdivision (c)(19), instead raising other issues. After briefing was complete, we requested additional briefing on the general intent versus specific intent issue citing Ellis and Leever. This was apparently the first time the issue came up in the case. We found no merit to Moores other contentions, but reversed the true finding on the federal bank robbery conviction.
Moore now relies on the doctrine of the law of the case to support his contention that the holding of the trial court cannot stand. Therefore, we proceed to this issue.
II. The Law of the Case
We held in the first appeal there was insufficient evidence to support the determination that the federal bank robbery was a serious felony. We remanded to allow the prosecution to put on additional evidence in an attempt to establish that it was a serious felony. As pertinent, we stated:
"We find the analysis in [People v.]Scott [(2000) 85 Cal.App.4th 905] persuasive insofar as it correctly rejects the applicability of res judicata and collateral estoppel as a bar to retrial on a strike prior where the initial finding of true was not supported by substantial evidence. (Scott, supra, 85 Cal.App.4th at pp. 918-919.) We also agree with the courts conclusion in Scott that the doctrine of law of the case serves only to prevent a finding of true on the same facts as were adduced at the first trial. To secure a true finding on an allegation of a prior strike, the People must present evidence in addition to that which was presented at the first trial. (Id. at pp. 924-925.) Thus, we agree with the Scott courts conclusion that there are no doctrinal or constitutional bars to retrial on the issue of the defendants strike status." (Italics added.)
Moore argues that since the People relied on the same evidence after remand, the federal bank robbery conviction cannot be used as a sentence enhancement. The People argue that application of the law of the case doctrine to this case will result in an unjust decision.
"`"The doctrine of the law of the case is this: That where, upon an appeal, the supreme court, in deciding the appeal, states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal, and, as here assumed, in any subsequent suit for the same cause of action, and this although in its subsequent consideration this court may be clearly of the opinion that the former decision is erroneous in that particular." [Citations.]" (People v. Ramos (1997) 15 Cal.4th 1133, 1161.)
"The principal reason for the doctrine is judicial economy. `Finality is attributed to an initial appellate ruling so as to avoid the further reversal and proceedings on remand that would result if the initial ruling were not adhered to in a later appellate proceeding. [Citation.] Because the rule is merely one of procedure and does not go to the jurisdiction of the court [citations], the doctrine will not be adhered to where its application will result in an unjust decision, e.g., where there has been a `manifest misapplication of existing principles resulting in substantial injustice [citation], or the controlling rules of law have been altered or clarified by a decision intervening between the first and second appellate determinations [citation]. The unjust decision exception does not apply when there is a mere disagreement with the prior appellate determination. [Citation.]" (People v. Stanley (1995) 10 Cal.4th 764, 786-787.)
The unjust decision rationale was discussed in People v. Shuey (1975) 13 Cal.3d 835, 845-846 (overruled on other grounds in People v. Bennett (1998) 17 Cal.4th 373, 389-390, fn. 5):
"We pause finally to consider whether application of the doctrine in this case would result in an `unjust decision. [Citations.] This broad exception has evolved gradually as courts strove to avoid the harsh consequences which may result from a strict application of the rule. [Citation.] For example, at one time it was thought that even an intervening contrary decision of this court would not affect the binding nature of the first decision upon a subsequent appeal [citation]; but modern cases reject that view [citation], and regard the rule as one of procedure only from which departure may be justified in the interests of justice. [¶] Yet if the rule is to be other than an empty formalism more must be shown than that a court on a subsequent appeal disagrees with a prior appellate determination. Otherwise the doctrine would lose all vitality and the holding of [People v.]Medina [(1972) 6 Cal.3d 484] would be reduced to a vapid academic exercise, since an unsuccessful petitioner for pretrial writ review could always maintain on subsequent appeal that the prior adjudication resulted in an `unjust decision. [¶] We do not propose to catalogue or to attempt to conjure up all possible circumstances under which the `unjust decision exception might validly operate, but judicial order demands there must at least be demonstrated a manifest misapplication of existing principles resulting in substantial injustice before an appellate court is free to disregard the legal determination made in a prior appellate proceeding."
Undoubtedly, the doctrine of law of the case is applicable to this matter. In the first appeal we determined that the evidence presented by the People was insufficient as a matter of law to support the trial courts conclusion that the federal bank robbery was a serious felony. As stated in our opinion, in the absence of additional evidence, the doctrine would preclude a finding that the evidence was sufficient for this purpose. The People admittedly relied on the same evidence at the subsequent sentencing hearing. Therefore, unless an exception to the doctrine applies, the determination that the federal bank robbery conviction is a serious felony cannot stand.
The principal ground for departing from the doctrine is because of a change in the controlling law between appeals. (Davidson v. Superior Court (1999) 70 Cal.App.4th 514, 530.) This ground has no application here because the change in the law that was omitted from our first opinion occurred well before we issued our opinion.
The second ground for departing from the doctrine is where an unjust decision would otherwise be the result, i.e., "a manifest misapplication of existing principles resulting in substantial injustice." (People v. Shuey, supra, 13 Cal.3d at p. 846.)
In People v. Scott (1976) 16 Cal.3d 242, the Supreme Court relied on the unjust decision exception to overturn an appellate court decision. The defendant and his young son were found by police officers on a highway on-ramp. The defendant claimed he was trying to return his son to his wife but lacked transportation. The officers agreed to give him a ride to his wifes home but searched him before allowing him in the vehicle. Contraband was discovered, for which the defendant was prosecuted. He moved to suppress the contraband, contending the search violated the Fourth Amendment. The trial court granted the motion. The appellate court vacated the order when the People sought a writ of mandate. The Supreme Court denied review of the appellate court decision. The defendant pled guilty and appealed. In determining that the doctrine of law of the case did not apply, the Supreme Court stated:
"In order to preserve the utility of the doctrine while maintaining its flexibility when the interests of justice so demand, we articulated a general guideline in Shuey ( at p. 846 of 13 Cal.3d): `judicial order demands there must at least be demonstrated a manifest misapplication of existing principles resulting in substantial injustice before an appellate court is free to disregard the legal determination made in a prior appellate proceeding. [¶] Such a showing is made in the case at bar. In ruling that the pat-down of defendant was justified as a pretransportation search even though he was not under arrest, the court in Scott I [(People v. Superior Court (Scott) (1973) 1 Civ. 33834)] relied primarily on the concurring opinion in People v. Superior Court ( Simon) (1972) 7 Cal.3d 186, 211.... As we shall demonstrate (Part II, infra), that holding was a manifest misapplication of the Simon opinion: the search is not justifiable on the stated ground. Moreover, in People v. Brisendine (1975) 13 Cal.3d 528, 537... decided in the interval between Scott I and Scott II, this court adopted the position taken in the concurring opinion in Simon; the intervening decision in Brisendine must thus be considered an additional factor in assessing the applicability of the doctrine of the law of the case. [Citation.]" (People v. Scott, supra, 16 Cal.3d at p. 247.)
No appellate court case number is provided for Scott II.
In essence, the Supreme Court held in People v. Scott, supra, 16 Cal.3d 242 that a manifest misapplication of existing principles occurred where the appellate court "misunderstood and misapplied" a Supreme Court opinion and thus reached the wrong decision. (People v. Stanley, supra, 10 Cal.4th at p. 788.)
Our research revealed numerous cases where the doctrine of law of the case was not followed because there was an intervening change in the law. People v. Scott, supra, 16 Cal.3d 242 is the only case we located where the unjust decision exception is applied. The parties have not cited any other cases applying the exception. Therefore, it is apparent that the unjust decision exception to the doctrine is rarely applied. We think that this is one of those rare cases.
Our opinion in the first appeal reversed the trial court only on the issue of whether the federal bank robbery conviction was a serious felony. Moore did not raise the issue either in the trial court or in his opening brief; it was raised by this court through our request for additional briefing. The Peoples response to our request for additional briefing failed to point out the 1988 amendment to section 1192.7 and that another court (People v. Guerrero, supra, 19 Cal.App.4th 401) determined the issue was now moot. Neither the statutory change nor Guerrero was discussed in our first opinion.
An unjust decision would result were we to apply the doctrine of law of the case where we invited the error in the first instance. Before the request for additional briefing was sent, we should have realized that Ellis and Leever had been overruled by statutory amendment. We certainly should have discovered this fact before issuing our opinion. While it is too late to withdraw our request for additional briefing, we need not penalize the People for our mistake. As in People v. Scott, supra, 16 Cal.3d 242, our first opinion was a manifest misapplication of existing principles and thus the doctrine of the law of the case does not apply.
III. Calculation of Credit for Time Served
Moore also contends, and the People concede, that the trial court erred by not calculating the credit to which Moore was entitled for time served when he was re-sentenced. This point is well taken. (People v. Buckhalter (2001) 26 Cal.4th 20, 23.) Therefore we will remand this matter to the trial court for the sole purpose of calculating the time served credits Moore has earned and the preparation of an amended abstract of judgment consistent therewith.
DISPOSITION
The judgment is affirmed. We remand to allow the trial court to determine the amount of credit Moore is entitled to for time served and to prepare an amended abstract of judgment.
WE CONCUR: DIBIASO, Acting P.J., VARTABEDIAN, J.