Opinion
D081986
04-18-2024
THE PEOPLE, Plaintiff and Respondent, v. NORMAN MAQUEL SMITH, Defendant and Appellant.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. SCS163681 Maureen F. Hallahan, Judge. Reversed and remanded with directions.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
IRION, Acting P. J.
In May 2002, a jury convicted Norman Maquel Smith of three counts of robbery (Pen. Code, § 211; counts 1, 3 &5), three counts of burglary (§ 459; counts 2, 4 &6), and one count of illegal possession of a firearm based on a prior violent offense (former § 12021.1, subd. (a); count 7). In June 2003, the trial court sentenced Smith to 100 years to life in prison. In November 2004, this court affirmed Smith's convictions. (People v. Smith (Nov. 2, 2004, D042454) [nonpub. opn.].)
All further undesignated statutory references are to the Penal Code.
Former section 12021.1, subdivision (a) was repealed and reenacted as section 29900, subdivision (a)(1) without substantive change. (Stats.2010, ch. 711, § 4, b.) Because Smith was convicted under the repealed statute, and it was only renumbered without substantive change, we refer to former section 12021.1(a) throughout this opinion for clarity and convenience. For brevity, we will not use the word "former."
Our unpublished opinion is citable under California Rules of Court, rule 8.1115(b)(2), because it is relevant to this criminal appeal and provides context for Smith's appellate claims.
In February 2023, Smith filed a petition for resentencing (§ 1170.18). The trial court summarily denied his petition the following month. On appeal, Smith argues that the trial court abused its discretion in denying his petition and that he is eligible for the reduction of his felony second degree burglaries (counts 2 and 4) to misdemeanors. The Attorney General counters that Smith's prior rape conviction makes him ineligible for resentencing. We conclude that there is insufficient evidence in the record about Smith's rape conviction to determine his eligibility for resentencing. Accordingly, we reverse and remand for an eligibility hearing on Smith's petition.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
In our 2004 unpublished opinion on Smith's direct appeal, we set forth the underlying facts of his convictions:
"A. The September 28, 2001, Allstate Insurance Burglary and Robbery of Carolina Gonzalez
"On September 28, 2001, at about 4:30 p.m., Carolina Gonzalez was working alone at Allstate Insurance in Chula Vista when a man, whom she later identified as appellant, entered the office. He approached Gonzalez, who was seated at her desk, and asked: 'All right, where is the money?' Appellant had a gun in his waistband under his shirt. A fearful Gonzalez led him into the agent's office, where the money was kept. After taking about $1,500 from the cash drawer, appellant ordered Gonzalez to go inside the bathroom and he left the scene. Gonzalez stayed in the bathroom for about a minute before coming out and calling the police.
"Gonzalez described appellant to the police as a black male about 35 years old, around five-feet, eight-inches tall, weighing about 160 pounds, with a scar on the side of his face. Police dusted for fingerprints at the scene, but the only identifiable print was a match to one of the Allstate employees. On November 6, 2001, Gonzalez tentatively identified appellant as the robber from a photographic lineup presented by Detective Yvette Roullier.
Although she told Detective Roullier at the time of the lineup that she wanted to see appellant in person to be sure it was the same man, Gonzalez later identified him at both the preliminary hearing and the trial.
"B. The October 16, 2001, Burglary of Southport Travel and Robbery of Carolyn Kruse
"On October 16, 2001, at 2:30 p.m., Carolyn Kruse was working at Southport Travel in National City when a man, whom she later identified as appellant, walked into her office and said: 'This is a stickup.' He asked her where the cash was, and she handed him $22 from the cash box. Meanwhile, Kruse noticed that appellant had his hand in his pocket and was holding an object which she could not see, but assumed, was a weapon. Realizing there was no more cash kept on the premises, appellant ordered Kruse to get on her knees and demanded she give him her purse. When Kruse told appellant that her purse was in the back room, he ordered her to walk back there while he followed close behind. When Kruse entered the room, she quickly slammed the door in appellant's face, locked it and called the police.
"When the police arrived, Kruse described appellant as a black male, approximately 28 to 32 years old, about five-feet, four-to five-feet, six-inches tall and weighing about 140 pounds. When shown a photographic lineup a few weeks later, Kruse was unable to identify appellant. She was, however, able to identify him at the preliminary hearing and at the trial. In addition, appellant's fingerprints were found by the police on the door to the back room of Southport Travel.
"C. The October 29, 2001, Burglary of Mercury Insurance and Robbery of Rosa Griffin
"On October 29, 2001, between 2:00 and 3:00 p.m., Rosa Maria Griffin was working at Mercury Insurance in Chula Vista. Her baby was with her at work that day. Griffin was on the telephone with her husband when she noticed a man, whom she later identified as appellant, standing outside her office. Griffin grabbed a piece of paper to cover up $ 105 in cash on her desk. After covering up the money, she got off the telephone and saw appellant standing beside her desk. She asked: 'Can I help you?' He replied that it was a robbery. Appellant took the cash which was under the piece of paper and asked where the rest of the money was. Fearful for her own and her child's safety, Griffin attempted to scream, but the man put his finger over his lips as if to tell her to be quiet. He also put a hand near his waist, leading her to believe that he was carrying a weapon.
"Meanwhile, two women who were working nearby noticed the commotion in Griffin's office and went inside to see if everything was all right. Appellant left the office as they were coming in. While Griffin called the police, one of the women chased appellant up the street to a local supermarket where two store employees apprehended him. After the police arrived, Griffin went to the supermarket and identified appellant as the man who robbed her. She also identified him at the preliminary hearing and at the trial."
(People v. Smith, supra, D042454.)
B. Procedural Background
In November 2001, the prosecutor filed an amended complaint alleging that Smith committed the separate crimes of second degree robbery (§ 211) and second degree burglary (§ 459) against three different victims on three different dates. (Counts 1 through 6.) As to the robbery and burglary in September 2001 (counts 5 and 6), it was further alleged on count 5 that Smith personally used a firearm within the meaning of section 12022.53, subdivision (b). Count 7 alleged that Smith was a felon in possession of a firearm, in violation of section 12021.1, subdivision (a). It was further alleged that Smith had two prior prison commitments, two prior violent felony convictions, three prior serious felony convictions, and seven prior strike convictions.
In May 2002, a jury found Smith guilty on all counts. All prior enhancements were found to be true. In June 2003, the trial court sentenced Smith to three consecutive sentences of 25 years to life with an additional 25 years for enhancements. Smith appealed his conviction and sentence. In November 2004, the judgment was affirmed in full in an unpublished opinion. (People v. Smith, supra, D042454 .)
In February 2023, Smith filed his section 1170.18 petition. In his petition, Smith claimed his felony convictions were now considered misdemeanors pursuant to Proposition 47, the act that created section 1170.18. Smith listed his crimes as three counts each of second degree robbery and second degree burglary. Smith requested his felony sentences be recalled and resentenced to misdemeanors in accordance with section 1170.18.
The prosecutor filed a form response to Smith's petition, noting that he had at least one prior conviction under section 667, subdivision (e)(2)(C)(iv) or an offense requiring registration pursuant to section 290, subdivision (c). Smith suffered a prior conviction for rape in violation of section 261 in 1979.
In March 2023, the trial court denied Smith's petition by checking the corresponding box on the form order and writing a note that Smith is "ineligible for relief requested."
II. DISCUSSION
We review the trial court's resentencing determination for an abuse of discretion. (People v. E.M. (2022) 85 Cal.App.5th 1075, 1082; People v. Frazier (2020) 55 Cal.App.5th 858, 863.) A ruling constitutes such an abuse "when it' "exceeds the bounds of reason, all of the circumstances before [the court] being considered," '" or when it is" 'so irrational or arbitrary that no reasonable person could agree with it.'" (Wade v. Superior Court (2019) 33 Cal.App.5th 694, 708.) A court abuses its discretion when it applies the wrong legal standard or bases its decision on express or implied factual findings unsupported by substantial evidence. (People v. Doron (2023) 95 Cal.App.5th 1, 9; People v. Moine (2021) 62 Cal.App.5th 440, 449.)
As set forth in section 1170.18, after a petitioning defendant establishes his eligibility for relief the prosecution may establish that the petitioning defendant is ineligible for resentencing by demonstrating that the defendant suffered a conviction of one or more of the offenses specified in section 1170.18, subdivision (i). (People v. Sledge (2017) 7 Cal.App.5th 1089, 1094.) The burden of proving a disqualifying prior conviction under Proposition 47 lies with the People and must be proven by preponderance of the evidence. (Id. at p. 1095.) The prosecution is entitled to produce evidence of facts from any source to establish a disqualifying prior conviction. (Ibid.) Evidentiary hearings are required if there is a reasonable likelihood that petitioner may be entitled to relief and that entitlement depends on resolving issues of fact. (Ibid.)
Section 1170.18, subdivision (i) states in part: "This section does not apply to a person who has one or more prior convictions . . . for an offense requiring registration pursuant to [section 290, subdivision (c)]." Section 290, subdivision (c) lists convictions under section 261 as offenses requiring registration as a sex offender. Proposition 47 is also specifically noted as ensuring that people with convictions for murder, rape, and child molestation do not benefit from reclassification under the act. (People v. Zamarripa (2016) 247 Cal.App.4th 1179, 1182.) Indeed, Proposition 47 is specifically aimed at focusing prison spending on those with serious and violent offenses, such as rape. (Id. at p. 1183.)
Here, the trial court denied Smith's petition because he was "ineligible" for resentencing. The Attorney General argues that Smith was ineligible due to his prior rape conviction that required registration as a sex offender under section 290, subdivision (c) and may count as a "super strike" under section 667, subdivision (e)(2)(C)(iv) or (d)(3). However, there was no hearing on Smith's status as a registered sex offender and the only reference to Smith having a sex registration requirement appears in the 2002 probation officer's report. Moreover, as the Attorney General concedes, "[f]or a rape charge to be disqualifying, the rape must be accomplished with force or threat of force" and it is "unknown whether [Smith's] prior rape was accomplished with force or threat of force." The Attorney General further concedes that, if we cannot affirm due to Smith's status as a registered sex offender, "the case should be subject to a limited remand so that the prosecutor can have the opportunity to demonstrate that [Smith's] prior rape conviction is disqualifying." Because there is insufficient evidence in the record as to Smith's prior rape conviction and his status as a registered sex offender, we will reverse the petition's denial and remand the matter for an eligibility hearing.
On December 8, 2023, the Attorney General filed a motion to strike its initial responsive brief and replace it with a proposed revised responsive brief that eliminates its argument that Smith's appeal is untimely. We grant the Attorney General's motion, strike its initial responsive brief filed on November 9, 2023, and deem its revised responsive brief filed as of December 8, 2023.
DISPOSITION
The order is reversed, and the matter is remanded to the trial court for an eligibility hearing on Smith's section 1170.18 petition for resentencing.
WE CONCUR: DATO, J., CASTILLO, J.