Opinion
D069565
03-17-2017
THE PEOPLE, Plaintiff and Respondent, v. MICKAEL DEANDRE WEBB, Defendant and Appellant.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christen Somerville, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD230595) APPEAL from a judgment of the Superior Court of San Diego County, Kerry Wells, Amalia L. Meza, Judges. Affirmed and remanded with directions. Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christen Somerville, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Mickael Deandre Webb appeals a judgment following resentencing after it was discovered Webb was originally sentenced under a former version of the One Strike law (Pen. Code, § 667.61) instead of the version of the statute applicable in October 2010, when Webb committed the crimes of sexual penetration causing great bodily injury. When the One Strike law was amended in September 2010, the circumstance of committing great bodily injury was moved to subdivision (d) from subdivision (e). The trial court determined Webb's original sentence was unauthorized because he should have been sentenced under subdivision (a) (requiring punishment of 25 years to life if a specified offense was committed under one of the circumstances listed in subdivision (d)), rather than under subdivision (b) (requiring punishment of 15 years to life if a specified offense was committed under one of the circumstances listed in subdivision (e)). Webb's aggregate prison term increased from 31 years to life to 51 years to life after resentencing.
All further statutory references are to the Penal Code unless otherwise indicated.
Unless otherwise stated, our One Strike law references are to the version of the law in effect at the time Webb committed his crimes. (Former § 667.61, as amended by Stats. 2010, ch. 219, § 16, pp. 1122-1124.)
Webb contends the new sentence is unauthorized or unconstitutional because (1) he did not receive fair notice he could be subjected to a sentence of 25 years to life based upon the great bodily injury allegation since the pleadings did not refer to the correct subdivisions of section 667.61 and (2) the verdict forms reflecting the jury's true finding on the great bodily injury did not specifically refer to section 667.61. Webb also contends the matter should be remanded to the court for recalculation of credits owed. We conclude the sentence was authorized. Webb was adequately notified of the charges and the potential applicability of the One Strike law. Webb and the People agree the trial court should have calculated appropriate credit for time served upon resentencing. We remand the matter for this purpose. In all other respects the judgment is affirmed.
BACKGROUND
A
Since both parties rely upon the factual summary in our opinion in the prior appeal, we quote it here. (People v. Mickael Deandre Webb (July 26, 2013, D061399) [nonpub. opn.] review den. Oct. 2, 2013 (Webb).) We previously took judicial notice of this opinion. The People also requested we take judicial notice of the portions of the record from the prior appeal. We deny the request because the People did not serve and file with the request the portions of the record for which they sought judicial notice. (Cal. Rules of Court, rule 8.252(a)(3).) --------
"On or about October 23, 2010, Webb and Angelique M. communicated via the Internet, arranged to meet at a mall, and, after talking there, decided to relocate to Angelique's apartment. When they arrived, Webb followed Angelique into her bedroom, immediately pushed her onto the bed, began to undo her pants and, when she resisted, strangled her until she blacked out. Angelique briefly awoke, but passed out again after Webb—then on top of her—choked her again. Angelique later found herself unclothed on the bed, her phone and wallet were missing and Webb was gone. Angelique went to a neighbor's apartment and waited there while the neighbor called the police, who escorted Angelique to a hospital.
"Sexual assault nurse examiner Claire Nelli observed injuries to Angelique's hymen, posterior fourtchette, and fossa navicularis. The injuries were fresh and 'consistent with something being inserted into the vagina.' According to Nelli, the injuries' severity indicated the penetrating object lacked a 'helper,' such as lubricant, 'wanting to have sex, [or] be[ing] in the right position that [so] everything goes as smoothly as possible.' She testified it was not likely that the injuries to Angelique's hymen and vagina were caused by something other than a penetrating object. Nelli also found abrasions, bruises, and swelling consistent with insertion of an object, penis, or fingers in the rectal opening, as well as 'far in[to]' and 'almost out' of Angelique's anal canal. A criminalist testified that he found no male DNA on swabs of Angelique's vagina or anus.
"During the exam, Angelique stated that she had not had anal or vaginal intercourse within the month prior to the incident, nor had she experienced injury or medical problems in either region. At trial, Angelique testified that she felt no soreness or pain in her anal or vaginal regions in the five days after the attack." (Webb, supra, D061399, fn. omitted.)
B
A jury convicted Webb of two counts of forcible anal or genital penetration (§ 289, subd. (a), counts 3 & 4) and one count of assault by means of force likely to produce great bodily injury (§ 245 subd. (a)(1), count 5). It also found true allegations Webb personally inflicted great bodily injury in committing the crimes (§ 12022.8, counts 3 & 4; §§ 12022.7 subd. (a), 1192.7 subd. (c)(8), count 5). The court originally sentenced Webb to consecutive terms of 15 years to life for counts 3 and 4 plus one consecutive one-year term for a prior prison conviction pursuant to former section 667.5 subd. (b). For count 5 and the corresponding bodily injury enhancement, the court imposed but stayed sentencing pursuant to section 654. We affirmed the judgment against Webb on the direct appeal concluding there was sufficient evidence of sexual penetration under section 289, subdivision (a), as to counts 3 and 4. (Webb, supra, D061399.)
C
Webb filed a petition for writ of habeas corpus claiming, among other things, judicial misconduct related to his sentencing. The superior court judge reviewing the matter noticed Webb was sentenced for counts 3 and 4 under a former version of section 667.61, subdivision (b). Since an amendment to the statute took effect before the crimes were committed in October 2010, Webb was subject to the sentencing provisions of subdivision (a), rather than subdivision (b). The court requested an informal response regarding whether a sentencing error occurred and available remedies.
The People submitted an informal response indicating Webb's original sentence was unauthorized and he should be resentenced pursuant to section 667.61, subdivision (a), to consecutive terms of 25 years to life for counts 3 and 4. The court issued an order to show cause and appointed counsel for Webb.
In response to the People's return to the order to show cause, Webb contended increasing his sentence at this stage would violate his due process rights because he was not informed he might be subject to a sentence of 25 years to life. Webb also contended the sentence was not unauthorized, but was a judicial error that cannot be corrected by amendment.
The court set an evidentiary hearing and oral argument on the issue of whether Webb's sentence was unauthorized and whether he should be resentenced under section 667.61, subdivision (a). The court also indicated it would consider arguments regarding the issues raised in Webb's original petition for writ of habeas corpus. The People submitted a supplemental brief addressing the issues raised in the petition for habeas corpus.
The court denied Webb's petition for writ of habeas corpus concluding he failed to state a prima facie claim for relief. The court, however, found "a sentencing error occurred in that [Webb] was required to be sentenced under [s]ection 667.61, subdivision (a) ..., but was incorrectly sentenced under subdivision (b). The California Legislature amended section 667.61 in September 2010, moving the circumstance of 'great bodily injury' from subdivision (e)(3) to subdivision (d)(6) of section 667.61. This change elevated the sentence from 15 years-to-life to 25 years-to-life upon a finding of great bodily injury." Because resentencing could increase Webb's sentence "substantially," the court transferred the matter to the trial and sentencing judge to consider resentencing.
After considering resentencing arguments from both parties, the trial judge vacated the original sentence as unauthorized. The trial judge resentenced Webb to consecutive terms of 25 years to life for counts 3 and 4.
In exercising its discretion to run these terms consecutively rather than concurrently, the trial judge again emphasized the brutal nature of the attack. The trial judge noted Webb attacked the victim almost immediately upon entering the apartment, which suggested grooming and planning. He choked the victim into unconsciousness, with no apparent regard for whether he killed her or not, and left her naked and bleeding with no means to call for help. The trial judge stated, "I found ... that he posed an extreme danger to the community, and I said I cannot justify not giving him all that the law allows for that reason, and all that the law allowed at that time was 25 to life on each of these counts." The trial judge imposed, but stayed pursuant to section 654, a total term of six years for count 5 based upon the middle term of three years plus three years for the great bodily injury enhancement. The trial judge also imposed a one-year consecutive term for the prison prior for an aggregate term of 51 years to life.
DISCUSSION
I
The One Strike law sets forth an alternative, harsher sentencing scheme for certain sex crimes. At the time of the offenses in this case, the law provided for a sentence of 25 years to life for a qualifying offense committed under one or more of the circumstances listed in section 667.61, subdivision (d), or two or more of the circumstances listed in section 667.61, subdivision (e). (§ 667.61, subds. (a), (d), (e).) The law provided for a sentence of 15 years to life for a qualifying offense committed under one or more of the circumstances listed in section 667.61, subdivision (e). (§ 667.61, subd. (b), (e).) Subdivision (f) provided in pertinent part, "[i]f only the minimum number of circumstances specified in subdivision (d) or (e) that are required for the punishment provided in subdivision (a), (b), (j), (l), or (m) to apply have been pled and proved, that circumstance or those circumstances shall be used as the basis for imposing the term provided in subdivision (a), (b), (j), (l), or (m) whichever is greater." The law further provided the alternative penalties applied "only if the existence of any circumstance specified in [section 667.61,] subdivision (d) or (e) is alleged in the accusatory pleading ..., and is either admitted by the defendant in open court or found to be true by the trier of fact." (§ 667.61, subd. (o).)
A
Webb contends the new sentence violated his due process right under the Fourteenth Amendment of the United States Constitution to fair notice that the allegations could subject him to a harsher penalty because the information erroneously referred to the incorrect subdivisions of the One Strike law. We do not agree.
"The People must allege the specific One Strike law circumstances it wishes to invoke as to each count it seeks to subject to the One Strike law's heightened penalties." (People v. Perez (2015) 240 Cal.App.4th 1218, 1227.) However, it is not necessary for the specific numerical subdivision of a qualifying One Strike circumstance to be pled. Rather, "the express pleading requirements of section 667.61, subdivisions (f) and ([o]), read together, require that an information afford a One Strike defendant fair notice of the qualifying statutory circumstance or circumstances that are being pled, proved, and invoked in support of One Strike sentencing. Adequate notice can be conveyed by a reference to the description of the qualifying circumstance (e.g., kidnapping, tying or binding, gun use) in conjunction with a reference to section 667.61 or, more specifically, 667.61, subdivision [(d) or] (e), or by reference to its specific numerical designation under subdivision [(d) or] (e), or some combination thereof." (People v. Mancebo (2002) 27 Cal.4th 735, 753-754 (Mancebo).)
Additionally, courts have held reference to an incorrect code section may be immaterial so long as the language of the information " 'plainly informed [the defendant] of the nature of his offense.' " (People v. Gerber (2011) 196 Cal.App.4th 368, 388; People v. Thomas (1987) 43 Cal.3d 818, 826 [" 'the specific allegations of the accusatory pleading, rather than the statutory definitions of offenses charged, constitute the measuring unit for determining what offenses are included in a charge' " and " 'even a reference to the wrong statute has been viewed of no consequence under the circumstances' "]; People v. Rivers (1961) 188 Cal.App.2d 189, 195 [mistaken designation of former code section immaterial when defendant "was plainly informed of the nature of his offense"].)
In this case, as to counts 3 and 4, the information alleged violations of section 289, subdivision (a) for sexual penetration. It also alleged Webb "personally inflicted great bodily injury on the victim ... in violation of [s]ection 12022.7 or 12022.8 in the commission of the present offense, within the meaning of [section 667.61, subdivisions (b), (c), (e)]." Although the specific subdivision reference to subdivisions (b) and (e) for sentencing based upon the great bodily injury circumstance was incorrect, the information plainly informed Webb he was charged with two crimes of sexual penetration (§ 667.61, subd. (c)(5)) and his conduct caused great bodily injury, which was a circumstance subjecting him to the alternative, harsher sentencing scheme of the One Strike law.
The circumstances here are distinguishable from those in Mancebo, supra, 27 Cal.4th 735 where the Supreme Court concluded "the pleading was inadequate because it failed to put defendant on notice that the People, for the first time at sentencing, would seek to use the multiple victim circumstance to secure indeterminate One Strike terms under section 667.61, subdivision (a) and use the circumstance of gun use to secure additional [sentencing] enhancements under section 12022.5[, subdivision] (a)." (Mancebo, at p. 745.) The Supreme Court determined each of the One Strike law's "pleading and proof requirements was breached ... when the gun-use circumstances, which had been properly pled and found true by the jury, were struck from the calculation of the One Strike indeterminate terms so that gun use could instead be used to impose lesser determinate terms under another enhancement statute (§ 12022.5[, subd.] (a)), with the unpled multiple victim circumstances purportedly substituted into the One Strike calculation for the first time at sentencing." (Id. at p. 751.)
Here, the People did not change theories prior to sentencing to increase Webb's sentence. Webb was informed from the beginning of this case he was charged with qualifying offenses and a qualifying circumstance giving rise to the alternative sentencing scheme of the One Strike law. The fact there was an error in identifying the applicable subdivision for the great bodily injury circumstance, and thus a difference in the applicable penalty, is not a violation of Webb's due process rights. Had Webb or his attorney consulted the One Strike law as it existed at the time he was charged, at the time of trial, and/or at the time of sentencing, it would have been apparent the great bodily injury circumstance was moved from subdivision (e) to subdivision (d). The applicable version of the One Strike law, read as a whole, required a sentence of 25 years to life based upon the jury's conviction of sexual penetration (an offense under subd. (c)) with a true finding of the great bodily injury circumstance (a circumstance enumerated under revised subd. (d)). (§ 667.61, subd. (a).)
B
Webb also contends the sentence is unauthorized because the jury's true finding that Webb inflicted great bodily injury referred to section 12022.8 rather than section 667.61. We do not agree.
"It is well settled that the determination of great bodily injury is essentially a question of fact, not of law. ' "Whether the harm resulting to the victim ... constitutes great bodily injury is a question of fact for the jury." ' " (People v. Escobar (1992) 3 Cal.4th 740, 750.) A special verdict on a factual finding "need not be in any particular form, but is sufficient if it presents intelligibly the facts found by the jury." (§ 1154.)
A qualifying circumstance under the One Strike law exists if "[t]he defendant personally inflicted great bodily injury on the victim ... in the commission of the present offense in violation of [section 12022.8]." (§ 667.61, subd. (d)(6).) The jury in this case found true allegations with respect to both counts 3 and 4 that Webb "personally inflicted great bodily injury upon Angelique M., within the meaning of ... section 12022.8." The jury presented conclusions of fact as established by the evidence on the issue of great bodily injury. It was the role of the court to draw conclusions of law based upon that fact. (§ 1152; see People v. Kelii (1999) 21 Cal.4th 452, 457 [a jury determines whether the defendant had a prior conviction, not whether or not the conviction qualifies as a strike].) As we have already determined, Webb was on notice of the potential applicability of the alternative sentencing scheme of the One Strike law based upon the allegations in the information related to the great bodily injury circumstance. Since the plain language of the One Strike law incorporates a violation of section 12022.8 within its definition of the great bodily injury circumstance, we conclude the jury's true findings satisfied the proof requirement and the court appropriately sentenced Webb under the One Strike law.
II
After resentencing, the court left blank the portion of the pronouncement of judgment form for calculation of credit for time served. The court ordered the probation department to submit a postsentencing probation report to the California Department of Corrections and Rehabilitation. The clerk of the trial court could not locate such a report.
The trial court should have calculated appropriate credits upon resentencing. (§ 2900.1; People v. Buckhalter (2001) 26 Cal.4th 20, 30-31, 33; People v. Black (2009) 176 Cal.App.4th 145, 154.) We remand the matter for this purpose.
DISPOSITION
The matter is remanded to the trial court for calculation of appropriate credits for time served and for amendment of the abstract of judgment to reflect the appropriate credits. The court is directed to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
MCCONNELL, P. J. WE CONCUR: BENKE, J. HALLER, J.