Opinion
A145663
12-20-2018
THE PEOPLE, Plaintiff and Respondent, v. ERIC WILLIAM WARNER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC045284A)
Appellant Eric William Warner (Warner) appeals the trial court's denial of his petition to recall his sentence under the Three Strikes Reform Act of 2012, added by Proposition 36 (the Reform Act). (See Pen. Code § 1170.126.) Specifically, Warner asserts that he is eligible to be resentenced on his conviction for unlawful possession of a firearm by a felon (§ 29800, subd. (a)(1)). In addition, Warner claims—relying on People v. Vargas (2014) 59 Cal.4th 635 (Vargas)—that he has been subjected to an unauthorized sentence under the Three Strikes law, because his two prior convictions should have been treated as one strike rather than two. The trial court concluded that Warner was ineligible for resentencing on the firearm conviction and that Vargas was inapplicable on these facts. We agree and therefore affirm.
In 1994, the Legislature, and thereafter the electorate, enacted similar "Three Strikes" laws. (See §§ 667, subds. (b)-(i) & 1170.12.) Under these provisions, a defendant who has one or more qualifying prior convictions, or "strikes," generally receives a significantly lengthier sentence than under prior law. (See People v. Benson (1998) 18 Cal.4th 24, 26 (Benson).) The Reform Act was intended to provide resentencing relief to low-risk, nonviolent offenders serving life sentences under the Three Strikes law for petty crimes, such as shoplifting and simple drug possession. (People v. White (2014) 223 Cal.App.4th 512, 526 (White); see also People v. Berry (2015) 235 Cal.App.4th 1417, 1425 [noting that the Reform Act's "overarching purpose" is to " 'retreat from the required imposition of unduly long sentences against "repeat offenders convicted of non-violent, non-serious crimes" under the prior Three Strikes law' "], overruled on other grounds by People v. Estrada (2017) 3 Cal.5th 661, 675.)
All statutory references are to the Penal Code unless otherwise specified.
I. FACTUAL BACKGROUND
In 1986, Warner entered into a plea bargain in San Francisco County Superior Court pursuant to which he pled guilty to one count of robbery (§ 211) and one count of kidnapping (§ 207) in return for concurrent three-year prison sentences and the dismissal of ten other counts of forcible sexual offenses. Thereafter, in June 1999, Warner was charged by the San Mateo County District Attorney (District Attorney) with murder (§ 187, subd. (a)) and being a felon in possession of a firearm (former § 12021, subd. (a)(1); see now § 29800, subd. (a)(1).) The information specifically alleged that Warner had suffered two prior strike convictions arising out of San Francisco, and that, with respect to the murder charge, Warner had personally used a firearm within the meaning of section 12022.53, subdivision (d). A jury found Warner guilty of both charges and determined the personal use of a firearm allegation to be true. Warner admitted the prior convictions, waiving a jury trial on this issue, and the trial court found them both to be strikes. He was then sentenced under the Three Strikes law to 100 years to life in state prison—consecutive terms of 45 years to life for second-degree murder, 25 years to life for using a firearm, 25 years to life for being a felon in possession of a firearm, and five years for a prior conviction.
In 2001, we reviewed Warner's second-degree murder conviction and concluded that it had been tainted by instructional error. We reversed the conviction, giving the District Attorney the option to retry the charge or have it deemed voluntary manslaughter. (People v. Warner (April 18, 2001, A090430) [nonpub. opn.] (Warner I).) On remand, the offense was reduced to voluntary manslaughter (§192, subd. (a)), and Warner was resentenced to 55 years to life. Warner again appealed, and we affirmed his second sentence in 2002. (People v. Warner (Dec. 13, 2002, A096923) [nonpub. opn.] (Warner II).)
Of these two prior opinions, only Warner II was included in the current record on appeal. We take judicial notice of Warner I on our own motion (Evid. Code, §§ 452, subd. (a) & 459, subd. (a)), having informed the parties of our intention to do so and given them a reasonable opportunity to respond (Id., §§ 455, subd. (a) & 459, subd. (c)). While Warner's counsel did respond on December 10, 2018, objecting to our proposed course of action, we find his arguments unpersuasive for the reasons set forth herein.
Over a decade later, in November 2014, Warner petitioned the San Mateo County Superior Court to recall his sentence pursuant to the Reform Act. (See § 1170.126.) Specifically, he sought resentencing with respect to his 2000 conviction for being a felon in possession of a firearm. Warner also claimed that, pursuant to the Supreme Court's recent decision in Vargas, supra, 59 Cal.4th 635, his 1986 convictions for robbery and kidnapping had been improperly treated as two strikes instead of one.
The District Attorney opposed Warner's petition, arguing that he was ineligible for resentencing on the firearm conviction and that Vargas was inapplicable on these facts. The trial court agreed, denying the petition on both grounds. Warner's timely notice of appeal now brings the matter before this court for a third time.
In addition, petitions for writs of habeas corpus were summarily denied in September 2011 (A133194) and June 2014 (A142055).
II. DISCUSSION
A. Eligibility for Resentencing: Possession of a Firearm by a Felon
We first consider Warner's claim that he is eligible for resentencing with respect to his conviction for being a felon in possession of a firearm, a crime for which he is currently serving a sentence of 25 years to life. The Reform Act provides that an inmate serving a Three Strikes sentence may be eligible for resentencing if the current felony conviction is not a serious and/or violent felony. (§ 1170.126, subd. (e)(1); People v. Johnson (2015) 61 Cal.4th 674, 681.) However, an inmate is statutorily ineligible for resentencing if "[d]uring the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person." (§§ 667, subd. (e)(2)(C)(iii) & 1170.12, subd. (c)(2)(C)(iii), italics added.)
Here, Warner argues, correctly, that possession of a firearm for purposes of section 12021, subdivision (a)(1), may be either actual or constructive, and thus mere possession of a firearm does not establish that an inmate was armed with the firearm so as to be disqualified from resentencing under the Reform Act. (People v. Blakely (2014) 225 Cal.App.4th 1042, 1054, 1058 (Blakely).) Instead, the phrase "armed with a firearm" has been statutorily defined and judicially construed to mean having a firearm available for use, either offensively or defensively. (People v. Osuna (2014) 225 Cal.App.4th 1020, 1035 (Osuna), disapproved on another ground in People v. Frierson (2017) 4 Cal.5th 225, 240, fn. 8; see also People v. Perez (2018) 4 Cal.5th 1055, 1065 (Perez).) Thus, the Reform Act requires "a temporal nexus between the arming and the underlying felony, not a facilitative one." (Osuna, at p. 1032.) It is the availability of and ready access to the weapon that constitutes arming. (Perez, at p. 1065; Blakely, at pp. 1054-1057; White, supra, 223 Cal.App.4th at p. 524; see also People v. Cruz (2017) 15 Cal.App.5th 1105, 1109-1110.)
Warner contends that there is insufficient evidence in his record of conviction to establish that he was armed with a firearm during the commission of his possession offense. We review the trial court's determination in this regard for substantial evidence. (Perez, supra, 4 Cal.5th at p. 1066 ["the trial court's eligibility determination, to the extent it is 'based on the evidence found in the record of conviction,' is a factual determination reviewed on appeal for substantial evidence"].) Thus, our job on appeal is to determine if there was sufficient evidence in the record of conviction to support the trial court's conclusion that the District Attorney proved Warner ineligible for resentencing beyond a reasonable doubt. (Ibid.) We conclude that there was.
The record of conviction in this case reveals the following pertinent facts with respect to the possession offense. In February 1999, Warner and his mother resided in a single rented room at the Ramirez residence. Julio Ramirez, who was "especially close" to Warner, reported that for "some time" prior to the shooting that resulted in Warner's manslaughter conviction, it appeared to him that Warner " 'felt paranoid, very paranoid of people wanting, like, to steal from him or people disrespecting him, clowning him as he would put it.' Two days before the shooting, [Warner] showed Julio Ramirez the handgun used in the shooting. [Warner] had obtained it to protect himself." (Warner I, supra, at p. 2.) On the day of the shooting, Warner and the victim were in the living room of the Ramirez residence, watching a boxing match with several other individuals. When the victim refused to pay Warner ten dollars—which Warner asserted the victim owed him—Warner "reached into his pocket and shot the victim in the head 'point blank.' " (Id. at pp. 2-3.)
Warner admitted firing the gunshot which killed the victim and the jury found beyond a reasonable doubt that Warner used a firearm in the commission of the shooting offense. Thus, at the time of that crime, Warner was clearly armed with a firearm. Although, ultimately, he was not sentenced on the personal use enhancement (because his conviction was reduced from second degree murder to voluntary manslaughter), the jury's finding in this regard remains a part of the record.
Although the jury made this finding beyond a reasonable doubt, we note that our review of the record in this context is not limited by the Sixth Amendment solely to facts found by the jury beyond a reasonable doubt. (Perez, supra, 4 Cal.5th at pp. 1063-1064 [under the Reform Act, "a factual finding that results in ineligibility does not increase the petitioner's sentence" and thus does not implicate the Sixth Amendment].) Rather, we may look at the entire record of conviction, including any appellate opinion. (People v. Woodell (1998) 17 Cal.4th 448, 450; see also id. at pp. 458-460 [appellate opinion admissible in this context as an official record; factual statements in the opinion properly admissible for the non-hearsay purpose of determining the basis for the conviction].)
In addition, our second appellate opinion in this matter describes the circumstances underlying Warner's sentencing with respect to his conviction for being a felon in possession of a firearm as follows: "In the first sentencing, Warner was given consecutive terms for second degree murder and for being an ex-felon in possession of a firearm. (People v. Warner, supra, A090430.) The first sentencing court found that he did entertain multiple criminal objectives because the evidence showed that earlier in the day, Warner possessed the weapon later used against his homicide victim. At resentencing, the court determined—based on similar factual findings—that section 654 was not implicated by its decision to impose consecutive terms for these two offenses." (Warner II, supra, at p. 5, italics added.)
The clear implication from the record of conviction is that Warner had ready access to the firearm and that it was available for his use at an earlier time on the same day as the killing during which he actually used it. In particular, we note that Warner had obtained the gun for personal protection; had showed it to Ramirez two days prior to the shooting; and had it in his pocket on the day of the shooting, which took place in his home on the same day as the possession offense. Thus, substantial evidence supports the trial court's conclusion that his firearm conviction was based on actual rather than constructive possession—that is, that he was armed with a firearm for purposes of the Reform Act during his possession offense. Indeed, when discussing the underlying purposes of the Reform Act in a similar context, one appellate court has opined: "It is clear the electorate's intent was not to throw open the prison doors to all third strike offenders whose current convictions were not for serious or violent felonies, but only to those who were perceived as nondangerous or posing little or no risk to the public. A felon who has been convicted of two or more serious and/or violent felonies in the past, and most recently had a firearm readily available for use, simply does not pose little or no risk to the public. '[T]he threat presented by a firearm increases in direct proportion to its accessibility. Obviously, a firearm that is available for use as a weapon creates the very real danger it will be used.' " (Osuna, supra, 225 Cal.App.4th at p. 1038.) That is, of course, exactly what happened here. We see no error in the trial court's eligibility determination. B. Prior Strike Offenses Under Vargas
Warner additionally claims that the trial court erred in refusing to strike one of his two prior strike offenses under the rationale of Vargas, supra, 59 Cal.4th 635. In Vargas, the defendant had two prior strikes—carjacking and robbery—which were based on the same act of taking the victim's car by force. (Id. at p. 640.) The Supreme Court held that "when faced with two prior strike convictions based on the same act, . . . the trial court [is] required to dismiss one of them." (Id. at pp. 640, 645.) In reaching this decision, our high court acknowledged its previous determinations that two convictions may qualify as separate strikes despite being adjudicated at the same trial and even when they could not be punished separately under section 654 because they were committed during the same indivisible course of conduct. (Id. at p. 638; see People v. Fuhrman (1997) 16 Cal.4th 930; Benson, supra, 18 Cal.4th 24; see also People v. Latimer (1993) 5 Cal.4th 1203, 1208 [" '[f]ew if any crimes . . . are the result of a single physical act' "; section 654 also applies where an indivisible course of conduct violated more than one statute].) However, the Vargas court distinguished these prior holdings from the "more extreme" situation before it in which the two prior felony convictions "were not only tried in the same proceeding and committed during the same course of criminal conduct, they were based on the same act, committed at the same time, against the same victim." (Vargas, at p. 638, italics added.)
Warner asserts that the failure to treat his two 1986 convictions as a single strike resulted in an unauthorized sentence that can be corrected at any time. "[T]he 'unauthorized sentence' concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal." (People v Scott (1994) 9 Cal.4th 331, 354.) Generally, a sentence is unauthorized "where it could not lawfully be imposed under any circumstance in the particular case." (Ibid.; see also People v. Smith (2001) 24 Cal.4th 849, 852-853.) The Attorney General argues on appeal that, since Warner is seeking an extension of Vargas in this case, his sentence cannot be deemed unauthorized under Vargas. However, Warner is essentially arguing that Vargas should be extended to cover situations in which two prior strike convictions occurred in a single incident, were resolved in a single proceeding, and occurred prior to the enactment of the Three Strikes law. If he is correct that the rationale in Vargas should be applied on these facts and requires that the two convictions here at issue be treated as a single strike, then any sentence to the contrary would be unauthorized. We will therefore consider the question on its merits. (Compare People v. Maharaj (2012) 204 Cal.App.4th 641, 648.)
Here, Warner pled guilty in 1986 to robbery (§ 211) and kidnapping (§ 207). The record reflects that these two charges were originally part of a 12-count complaint which alleged that Warner both aided and abetted and acted in concert with another individual to repeatedly rape, sodomize, and orally copulate a single victim on a single date. The kidnapping charge to which Warner pled carried the special allegation that the kidnapping was for the purpose of committing a sexual offense. Although portions of the complaint are missing from our record on appeal—in particular, the allegations underlying the robbery count—we accept Warner's assertion that the robbery was committed at the same time and against the same victim. However, even if the robbery and the kidnapping were part of the same course of conduct—making multiple sentences inappropriate under section 654—they were clearly not based on the same act. "Robbery is 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; People v. Lindberg (2008) 45 Cal.4th 1, 24.) In contrast, the gravamen of a kidnapping charge is the forcible movement of another person without that person's consent. (See People v. Majors (2004) 33 Cal.4th 321, 326-327.) One is a crime against a person, while the other involves the act of taking personal property from another. Thus, by its express terms, the Vargas exception does not apply on these facts.
Warner appears to concede as much, but argues that the Vargas rule should be extended to situations where two prior convictions occurred in a single incident and were resolved in a single proceeding prior to the enactment of the Three Strikes law in 1994. Specifically, Warner asserts that he was unaware at the time of his 1986 plea that the two convictions would later be treated as separate strikes under the Three Strikes law, a situation under which even "the most prescient of counsel could not have foreseen the extent of [his] liability." (See People v. Wilson (2013) 219 Cal.App.4th 500, 516 (Wilson).) He further avers that additional facts needed to be found before a decision could be made as to whether his prior robbery and kidnapping convictions should now be treated as a single indivisible event for sentencing purposes. We are not convinced.
In Benson, the Supreme Court expressly concluded, " 'based on the plain language of the statute, that the Legislature and the voters through the initiative process clearly intended that each conviction for a serious or violent felony counts as a prior conviction for sentencing purposes under the Three Strikes law, even where the convictions were based upon conduct against a single victim committed at the same time with a single intent, and where pursuant to section 654 the defendant was punished for only a single crime.' " (Benson, supra, 18 Cal.4th at p. 30, italics added.) In that case, the defendant had been convicted in 1980 of residential burglary and assault with intent to commit murder based on an incident in which the defendant—after returning a vacuum he had borrowed from a neighbor—went back to the neighbor's apartment stating he had left his keys and then proceeded to force her to the floor and repeatedly stab her. (Id. at p. 27.) Even though the trial court had stayed one of the convictions pursuant to section 654 because both offenses were based on the same course of conduct, the Supreme Court held it appropriate to treat each prior conviction as a strike. (Id. at pp. 26-27.)
In reaching this decision, the Benson court opined: "[T]here clearly was a rational basis upon which the electorate and the Legislature could direct the courts, in cases involving a defendant with two prior felony convictions who thereafter commits a subsequent felony, to count each prior felony conviction as a strike, in effect declining to extend the leniency previously afforded the defendant when sentence on a prior felony conviction was stayed under section 654. In the present case, defendant received the benefit of section 654 when he was sentenced for the felonies he committed in 1979; it was only when defendant reoffended after the enactment of the Three Strikes law that he faced the prolonged incarceration of which he now complains. The Three Strikes law provided him with notice that he would be treated as a recidivist if he reoffended. [Citation.] He chose to ignore that notice and commit a subsequent felony." (Benson, supra, 18 Cal.4th at pp. 34-35.)
The Vargas court never questioned this analysis. It simply distinguished Benson as a case involving "multiple criminal acts (albeit committed in a single course of conduct) and not, as here, multiple criminal convictions stemming from the commission of a single act." (Vargas, supra, 59 Cal.4th at p. 648.) As the present case is on all fours with Benson, we see no reason to depart from its reasoning based on the fact—also present in Benson—that the prior convictions pre-dated the Three Strikes law and thus, at the time of his prior plea, Warner was not fully aware of the extent of his potential future liability. Moreover, Warner's assertions to the contrary notwithstanding, this is not a case where additional facts needed to be found in order to determine whether Vargas should be applied. Rather, as discussed above, the elements of the crimes underlying Warner's prior convictions for robbery and kidnapping themselves establish that he committed multiple criminal acts in a single course of conduct. Thus, neither of the rationales advanced by Warner support an extension of the Vargas reasoning to cover the circumstances of this case.
Warner's related constitutional arguments fail for similar reasons. For instance, Warner cites Wilson for the proposition that due process is implicated when dealing with convictions that arose prior to the enactment of the Three Strikes law because increasing "a defendant's sentence based on disputed facts that he had no reason or right to contest would be fundamentally unfair." (Wilson, supra, 219 Cal.App.4th at p. 516.) Warner further claims that his Sixth Amendment rights were violated because the trial court, rather than a jury, determined that his prior convictions should be treated as two strikes instead of one. Our high court recently described the scope of a defendant's Sixth Amendment rights in this context as follows: " 'The Sixth Amendment contemplates that a jury—not a sentencing court—will find' the facts giving rise to a conviction, when those facts lead to the imposition of additional punishment under a recidivist sentencing scheme." (People v. Gallardo (2017) 4 Cal.5th 120, 134.) Thus, "a court considering whether to impose an increased sentence based on a prior qualifying conviction may not determine the 'nature or basis' of the prior conviction based on its independent conclusions about what facts or conduct 'realistically' supported the conviction. [Citation.] That inquiry invades the jury's province by permitting the court to make disputed findings about 'what a trial showed, or a plea proceeding revealed, about the defendant's underlying conduct.' [Citation.] The court's role is, rather, limited to identifying those facts that were established by virtue of the conviction itself—that is, facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as the factual basis for a guilty plea." (Id. at p. 136; see also People v. Saez (2015) 237 Cal.App.4th 1177, 1207-1208 ["when the elements of a prior conviction do not necessarily establish that it is a serious or violent felony under California law (and, thus, a strike), the court may not under the Sixth Amendment ' "make a disputed" determination "about what the defendant and state judge must have understood as the factual basis of the prior plea," or what the jury in a prior trial must have accepted as the theory of the crime' "].)
Again, however, by pleading guilty to both robbery and kidnapping in 1986, Warner necessarily admitted to engaging in two separate criminal acts. Thus, no additional facts needed be found, by a jury or otherwise, to support the trial court's conclusion that Warner's prior convictions should be treated as two separate strikes. Under these circumstances, where the facts of the convictions themselves demonstrate that Vargas is inapplicable, the trial court obviously did not violate the Sixth Amendment or offend due process in so finding.
III. DISPOSITION
The trial court's order is affirmed.
REARDON, J. We concur: /s/_________
STREETER, ACTING P. J. /s/_________
TUCHER, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.