Napa County, 2012, Ms. Curry pleaded no contest to a felony count of second degree burglary. Imposition of sentence was suspended and she was placed on a three-year grant of probation. Because Curry lived in Alameda county, the case was transferred to Alameda county pursuant to PC 1203.9, which vested the Alameda Superior Court with "full jurisdiction over the matter . . . ."
Alameda County, 2015, Curry petitioned the Alameda court to reduce her conviction to a misdemeanor pursuant to PC 1170.18. The Alameda court denied the petition for improper venue, finding Napa was the proper court to rule on Curry's petition. This because PC 1170.18 states the petition be filed in the "trial court that entered the judgment of conviction". She appealed.
The First District affirms.
The result is reasonable, it makes sense to have the judge who presided over the litigation make the factual findings necessary for ruling on a 1170.18 petition. The issue arises because the text of PC 1170.18 is in conflict with that in PC 1203.9. Giving full effect to both sections means a petitioner is to file her petition in a court from which "full jurisdiction" has previously been transferred. Clearly a choice has to be made. The statutory cannon that more recently enacted language is to be preferred when it conflicts with older language supports the decision here. Really there is nothing unreasonable about the result.
However the opinion is dreadful. It begins with a girning jeremiad about Proposition 47 and concludes with a supererogatory (and embarrassingly erroneous) discussion that confuses probation with post release community supervision (PRCS), describing the latter as a "kind of probation".
Curry was on PRCS in Alameda when she was placed upon probation in this case in Napa. PRCS is a form of post-prison supervision that has replaced parole for a large number of state prisoners. Curry's PRCS expired before her PC 1170.18 petition in the instant matter.
Part of Curry's argument on appeal was that a judicial treatise on PC 1170.18 indicated that because of the language in 1203.9, the proper venue for probationers whose matters had been transferred was the county to which the case had been transferred. This helps Curry. The opinion, however, notes the same treatise asserts that persons on PRCS whose cases had been transferred under PC 3640, must petition the county in which they were initially placed on PRCS, and intimates that this somehow (we're not told how, nor could we be) cuts against Curry's argument that the treatise supports her argument that Alameda is the proper venue for her 1170.18 petition pertaining to the burglary conviction out of Napa for which she is on probation (not PRCS).
Hopefully some clerk at the First District will persuade the author of the opinion to conduct some much-needed revisions.
Thursday, July 28, 2016
Tuesday, July 26, 2016
P v. Superior Court (Tejeda) Blanket Papering of Judge By Orange County D.A. Is Constitutional.
One Mr. Tejeda was charged with a gang murder in Orange County. His case was assigned for all purposes to Judge Thomas Goethals. The State then filed a motion to disqualify Judge Goethals pursuant to California Code of Civil Procedure section 170.6, a statute which allows both parties in a case to disqualify one judge. Under 170.6 there is no evidentiary burden on the moving party, the party may simply execute a boilerplate affidavit stating its belief that the judge at issue is unqualified to hear the case. As long as the motion is timely, it is usually granted as a matter of right.
But here the motion was denied by one Judge King. Denied because Judge King found the Orange County DA had been "blanket papering" Judge Goethals as payback for Judge Goethals having previously found the DA's office had committed misconduct in other cases and ordered the D.A.'s office disqualified from prosecuting certain cases as a consequence of the misconduct. Since Judge Goethal's judicial assignment was to hear long and complicated cases, the fact the DA was disqualifying him in nearly every case was wreaking havoc with the O.C. courts. Judge King felt the DA, upset with Judge Goethals' past rulings, was abusing section 170.6 with an eye toward getting Judge Goethals reassigned.
The State petitioned for a writ which the Fourth District issues directing Judge King to vacate his denial and reassign the case to a different judge.
The great Judge Richard Posner recently wrote an excellent book on how judges think. He describes the process as a two-step. In the first step, the judge settles on what she believes is a reasonable result based on the judge's view of the world. Step two is determining whether the judge is "blocked" from getting to her preferred result by a statute, a higher court decision, or pragmatic concerns.
I say with certainty that all three justices on this panel personally believe this kind of "blanket papering" should not be permitted because it disrupts the administration of the courts and compromises the independence of the judiciary. Where the panel differs is whether they are "blocked" from getting to this result. The author of the opinion and the concurring justice conclude they are blocked by the California Supreme Court's decision in Solberg (1977) 19 Cal.3d. 182, and say so. They go so far as to beg California's high court to revisit the issue. The dissenter, unsurprisingly, believes there is wiggle room within Solberg to justify Judge King's denial.
So as of now, the State can continue to "paper" Judge Goethals as retribution for his past adverse rulings.
Monday, July 25, 2016
P v. Ghipriel (4th Dist., Div.1) Force Used In Sexual Assault of Cornered Victim Constituted "Violence" Elevating False Imprisonment To a Felony.
Mr. Ghipriel owned a steakhouse. His victim was a recent high school grad employed as a hostess at his steakhouse. Ghipriel's behavior toward the victim began as antediluvian and quickly devolved from there.
The culmination of Ghipriel's course of crude sexual assaults constituted pulling the victim into his office, locking the door, cornering her, before groping her and rubbing his penis against her stomach. This he did at least three times.
For his transgressions, Ghipriel was convicted by a jury of, among other crimes, three counts of felony false imprisonment. He appealed these convictions, arguing the evidence was insufficient that he used violence to imprison the victim.
The Fourth District affirms.
In California, the crime of false imprisonment can be a misdemeanor or a felony. False imprisonment that involves the use of violence is a felony. Violence, in this context, is when the "force used is greater than that reasonably necessary to effect the restraint". If force used is only that necessary to keep the person from leaving, it's a misdemeanor. If additional force, beyond that needed to keep the person from leaving, is used, it's a felony.
Ghipriel locked the victim in his office and cornered her, preventing her from leaving. Then he groped her, which required the use of physical force. Groping the victim was not necessary to prevent her from leaving (the locking and cornering were sufficient), hence it involved a degree of force greater than that needed simply to keep the victim restrained.
The culmination of Ghipriel's course of crude sexual assaults constituted pulling the victim into his office, locking the door, cornering her, before groping her and rubbing his penis against her stomach. This he did at least three times.
For his transgressions, Ghipriel was convicted by a jury of, among other crimes, three counts of felony false imprisonment. He appealed these convictions, arguing the evidence was insufficient that he used violence to imprison the victim.
The Fourth District affirms.
In California, the crime of false imprisonment can be a misdemeanor or a felony. False imprisonment that involves the use of violence is a felony. Violence, in this context, is when the "force used is greater than that reasonably necessary to effect the restraint". If force used is only that necessary to keep the person from leaving, it's a misdemeanor. If additional force, beyond that needed to keep the person from leaving, is used, it's a felony.
Ghipriel locked the victim in his office and cornered her, preventing her from leaving. Then he groped her, which required the use of physical force. Groping the victim was not necessary to prevent her from leaving (the locking and cornering were sufficient), hence it involved a degree of force greater than that needed simply to keep the victim restrained.
P v. Frierson (2nd Dist., Div.4) Denial of PC 1170.126 Petition Affirmed; Preponderance Is The Correct Standard
Mr. Frierson had been sentenced to a life term under the former "two strikes and any subsequent felony" law, the subsequent felony being the crime of stalking, PC 646.9.
Following the amendments to the "strike" laws, Frierson petitioned the trial court to resentence him pursuant to PC 1170.126, a statute that allows certain prisoners serving life sentences under the former law to be resentenced under the current "strike" laws. Under 1170.126, a petitioner is not eligible for resentencing if, during the commission of the triggering felony (here the stalking), the petitioner intended to cause great bodily injury (GBI) to the victim.
Frierson's stalking conviction was based upon letters he sent from prison to his estranged wife. His wife, understandably, wanted a divorce. Frierson sent her a series of letters vowing that if he couldn't have her, no one could. He vowed to "track her down" and sent her a newspaper clipping of a murder-suicide committed by a jilted spouse.
Based on the above facts, the trial judge denied Frierson's petition, finding him disqualified from relief because he, in committing his stalking crime, intended to inflict GBI upon his wife. Frierson appealed.
The Second District affirms.
This is a frustrating opinion. Not for its decisions on the issues of whether the trial court abused its discretion and whether the proper standard is a preponderance of evidence. Both these decisions are reasonable. What irritates is that the opinion fails to examine the source of the evidence at issue.
It is, IMEO, well settled what may be examined by the trial court in making its decision on a PC 1170.126 petition, all relevant, reliable, and admissible material contained in the record of conviction. The opinion cites this rule, but omits the last two words. This is important. The record of conviction is limited to specific items. The textual omission noted above, coupled with the opinion's failure to state from where the disqualifying facts came, gave me pause.
Did the facts underlying the affirmance actually come from the record of conviction (preliminary hearing transcript, change of plea form, or a document incorporated by reference), or did it come from an impermissible source? Is the failure to mention the source a conscious attempt to avoid the issue?
Following the amendments to the "strike" laws, Frierson petitioned the trial court to resentence him pursuant to PC 1170.126, a statute that allows certain prisoners serving life sentences under the former law to be resentenced under the current "strike" laws. Under 1170.126, a petitioner is not eligible for resentencing if, during the commission of the triggering felony (here the stalking), the petitioner intended to cause great bodily injury (GBI) to the victim.
Frierson's stalking conviction was based upon letters he sent from prison to his estranged wife. His wife, understandably, wanted a divorce. Frierson sent her a series of letters vowing that if he couldn't have her, no one could. He vowed to "track her down" and sent her a newspaper clipping of a murder-suicide committed by a jilted spouse.
Based on the above facts, the trial judge denied Frierson's petition, finding him disqualified from relief because he, in committing his stalking crime, intended to inflict GBI upon his wife. Frierson appealed.
The Second District affirms.
This is a frustrating opinion. Not for its decisions on the issues of whether the trial court abused its discretion and whether the proper standard is a preponderance of evidence. Both these decisions are reasonable. What irritates is that the opinion fails to examine the source of the evidence at issue.
It is, IMEO, well settled what may be examined by the trial court in making its decision on a PC 1170.126 petition, all relevant, reliable, and admissible material contained in the record of conviction. The opinion cites this rule, but omits the last two words. This is important. The record of conviction is limited to specific items. The textual omission noted above, coupled with the opinion's failure to state from where the disqualifying facts came, gave me pause.
Did the facts underlying the affirmance actually come from the record of conviction (preliminary hearing transcript, change of plea form, or a document incorporated by reference), or did it come from an impermissible source? Is the failure to mention the source a conscious attempt to avoid the issue?
Thursday, July 21, 2016
P v. McCaw (2nd Dist., Div. 5) Strike Finding Reversed For the Third Time; Judicial Fact-Finding Violates 6th Amendment.
Back in 1999, Mr. McCaw pleaded guilty to attempted third degree robbery in New York. Forward to 2011 when McCaw is convicted of attempted manslaughter in California. Following the jury verdict in 2011, the trial court found the 1999 New York conviction constitutes a "strike" and enhanced McCaw's sentence accordingly (by doubling the base term and adding 5 years). In appeal number one, the Second District reversed the strike finding. The elements of the NY third degree robbery statute are more broad than California's robbery statute. Specifically, California's robbery statute has an element of theft from a person while the New York statute only requires some type of theft. As the NY crime for which McCaw was convicted can be committed without necessarily satisfying the elements of a California robbery, the trial court erred in deeming the NY conviction a strike.
Upon remand, the trial court again examined McCaw's NY conviction, this time looking at an affidavit of the victim. The affidavit, attached to the complaint, stated that McCaw tried to steal the victim's purse while the victim was holding it. The trial court found the victim's statement to be true and accordingly deemed McCaw's NY conviction a strike as McCaw's crime would have factually constituted a California robbery as it involved a theft from the person of the victim. In appeal number two the Second District reversed again. This time, the Court of Appeal found the affidavit insufficient to affirm the strike finding. The affidavit, attached to the complaint, was provided for the grand jury, which returned an indictment for attempted first degree robbery. McCaw pleaded to attempted third degree robbery, meaning the affidavit pertained to an offense to which McCaw never pleaded guilty. Again the case was remanded.
This time around, the trial court looked at the change of plea transcript from McCaw's NY conviction.
The Court: Anybody forcing you to make the admissions?
The Defendant: Yes.
The trial court again found McCaw's NY conviction constituted a strike, this time based upon the above language. McCaw files appeal number three.
And (third times a charm) again, the Second District reverses and remands.
This time around the issue concerns whether the judicial fact-finding violated McCaw's Sixth Amendment right to have a jury decide facts used to enhance his sentence beyond the statutory maximum for the offense (here, the attempt manslaughter). Previously, the California Supreme Court (McGee) concluded that this type of judicial fact-finding passed constitutional muster. However, in the interim, the United States Supreme Court (Descamps) reiterated that when a defendant pleads guilty to a crime, he only waives his right to a jury trial as to the elements of that crime. He does not waive his right to a jury trial as to facts, not elements of the crime, which may be used to enhance his sentence beyond the statutory maximum.
Accordingly, the Second District holds that reliance on statements from a change of plea hearing that are not relevant to the crime of conviction is prohibited by the Sixth Amendment. Thus, the finding is reversed and the case remanded for a third time for a fourth trial on whether McCaw's NY conviction is a strike offense.
Upon remand, the trial court again examined McCaw's NY conviction, this time looking at an affidavit of the victim. The affidavit, attached to the complaint, stated that McCaw tried to steal the victim's purse while the victim was holding it. The trial court found the victim's statement to be true and accordingly deemed McCaw's NY conviction a strike as McCaw's crime would have factually constituted a California robbery as it involved a theft from the person of the victim. In appeal number two the Second District reversed again. This time, the Court of Appeal found the affidavit insufficient to affirm the strike finding. The affidavit, attached to the complaint, was provided for the grand jury, which returned an indictment for attempted first degree robbery. McCaw pleaded to attempted third degree robbery, meaning the affidavit pertained to an offense to which McCaw never pleaded guilty. Again the case was remanded.
This time around, the trial court looked at the change of plea transcript from McCaw's NY conviction.
The Court: You’re charged with an incident that occurred on November 3rd, 1997. It’s alleged that on that date . . . you were engaged in criminal conduct. It’s alleged you attempted to forcibly steal property from the person of Michele Jaworski, and furthermore in the course of the matter you did, and subsequent to that, you did possess a loaded firearm and that the firearm was possessed at a location not your home or place of business, that being an operable and loaded firearm. “With respect to the allegation you forcibly stole property from another person armed with a loaded and operable firearm, do you now enter a plea of guilty?The Defendant: Yes.
The Court: Do you hereby acknowledge the criminal acts alleged were, in fact, committed by you?The Defendant: Yes.
The Court: Anybody forcing you to make the admissions?
The Defendant: No.The Court: Are you telling me the truth when you say you are guilty of these two crimes, attempted robbery in the third degree and criminal possession of a weapon in the third degree, and do you now freely acknowledge and admit your guilt of those offenses and tell me the truth in acknowledging your guilt?
The Defendant: Yes.
The trial court again found McCaw's NY conviction constituted a strike, this time based upon the above language. McCaw files appeal number three.
And (third times a charm) again, the Second District reverses and remands.
This time around the issue concerns whether the judicial fact-finding violated McCaw's Sixth Amendment right to have a jury decide facts used to enhance his sentence beyond the statutory maximum for the offense (here, the attempt manslaughter). Previously, the California Supreme Court (McGee) concluded that this type of judicial fact-finding passed constitutional muster. However, in the interim, the United States Supreme Court (Descamps) reiterated that when a defendant pleads guilty to a crime, he only waives his right to a jury trial as to the elements of that crime. He does not waive his right to a jury trial as to facts, not elements of the crime, which may be used to enhance his sentence beyond the statutory maximum.
Accordingly, the Second District holds that reliance on statements from a change of plea hearing that are not relevant to the crime of conviction is prohibited by the Sixth Amendment. Thus, the finding is reversed and the case remanded for a third time for a fourth trial on whether McCaw's NY conviction is a strike offense.
P v. Fuentes (Cal. SC) Courts May Dismiss Gang Enhancements Under PC 1385(a)
Mr. Fuentes was charged with stealing a car, under VC 10851, and possession of stolen property, PC 496(a). Attached to these crimes was a gang enhancement pursuant to PC 186.22(b).
Following a chambers conference, the trial court told Fuentes that if he pleaded to the two substantive crimes, it would dismiss the gang enhancement pursuant to PC 1385(a). Fuentes so pleaded; the court dismissed the 186.22(b) enhancement. The State appealed and the Court of Appeal affirmed.
The California Supreme Court grants review and affirms.
The issue of whether PC 1385 grants a trial court the power to dismiss a PC 186.22 enhancement involves the interplay between these two statutes. Section 1385(a), enacted in 1872, grants the trial court the power to dismiss an "action" in the furtherance of justice, an "action" later being construed to mean individual charges and allegations. Come 1988, the legislature passes PC 186.22, which contains a subsection (now 186.22(g)) which grants, notwithstanding any other law, the power to strike the punishment for 186.22 enhancements. Finally, in 2000, the legislature enacted subsection 1385(c)(1), codifying the preexisting power of a court to strike the punishment for any enhancement it had the power to dismiss under 1385(a).
The State argues the phrase "notwithstanding any other law" in 186.22(g) denotes a legislative intent to place 186.22 enhancements beyond the authority previously granted by PC 1385(a). The opinion replies that "notwithstanding" means "in spite of" and thus only has application to contrary laws, leading to the question of whether the authority granted to courts in 1385(a) is contrary to that in 186.22(g). Clearly it is not, as the authority in 1385(a) concerns the ability to dismiss while that in 186.22(g) concerns only the ability to strike a punishment (without affecting the future consequences of the enhancement).
The State then resorts to shotgunning judicial maxims in hopes of hitting a tender spot, but finds no success. The California Supreme Court demands strong evidence before it will divest the courts of their authority to dismiss under 1385, and doesn't find it here.
Following a chambers conference, the trial court told Fuentes that if he pleaded to the two substantive crimes, it would dismiss the gang enhancement pursuant to PC 1385(a). Fuentes so pleaded; the court dismissed the 186.22(b) enhancement. The State appealed and the Court of Appeal affirmed.
The California Supreme Court grants review and affirms.
The issue of whether PC 1385 grants a trial court the power to dismiss a PC 186.22 enhancement involves the interplay between these two statutes. Section 1385(a), enacted in 1872, grants the trial court the power to dismiss an "action" in the furtherance of justice, an "action" later being construed to mean individual charges and allegations. Come 1988, the legislature passes PC 186.22, which contains a subsection (now 186.22(g)) which grants, notwithstanding any other law, the power to strike the punishment for 186.22 enhancements. Finally, in 2000, the legislature enacted subsection 1385(c)(1), codifying the preexisting power of a court to strike the punishment for any enhancement it had the power to dismiss under 1385(a).
The State argues the phrase "notwithstanding any other law" in 186.22(g) denotes a legislative intent to place 186.22 enhancements beyond the authority previously granted by PC 1385(a). The opinion replies that "notwithstanding" means "in spite of" and thus only has application to contrary laws, leading to the question of whether the authority granted to courts in 1385(a) is contrary to that in 186.22(g). Clearly it is not, as the authority in 1385(a) concerns the ability to dismiss while that in 186.22(g) concerns only the ability to strike a punishment (without affecting the future consequences of the enhancement).
The State then resorts to shotgunning judicial maxims in hopes of hitting a tender spot, but finds no success. The California Supreme Court demands strong evidence before it will divest the courts of their authority to dismiss under 1385, and doesn't find it here.
Monday, July 11, 2016
P v. Vang (3rd Dist.) A Dead Body Cannot Inhabit a Structure; Arson of Inhabited Dwelling Conviction Reversed
Mr. Vang burgled a Sacramento home. While Vang and his codefendant ransacked the home, they encountered the home's sole resident. Vang and company beat the resident and then shot him dead. They absconded with the resident's guitars and surfboards only to return and torch the house. For creating this macabre tragedy, Vang was convicted of first degree murder and several lesser offenses including arson of an inhabited dwelling. His punishment was set at life without parole plus nine years. Vang appealed.
The Third District reverses the arson of an inhabited dwelling conviction and otherwise affirms.
The facts here create an emotional bias towards affirmance, but admirably the panel analyzes the issue without regard the moral reprehensibility of the facts. California defines "inhabited" as "currently" being used for dwelling purposes, requiring a person's intent to reside at the place at issue. A dead body can have no such intent, hence after a sole resident is killed, the place is no longer inhabited.
The legislative history and relevant case law all support the panel's holding. No reproach is warranted.
And as a practical matter, the decision is of no practical effect here. Vang's life without parole sentence for murder stands.
The Third District reverses the arson of an inhabited dwelling conviction and otherwise affirms.
The facts here create an emotional bias towards affirmance, but admirably the panel analyzes the issue without regard the moral reprehensibility of the facts. California defines "inhabited" as "currently" being used for dwelling purposes, requiring a person's intent to reside at the place at issue. A dead body can have no such intent, hence after a sole resident is killed, the place is no longer inhabited.
The legislative history and relevant case law all support the panel's holding. No reproach is warranted.
And as a practical matter, the decision is of no practical effect here. Vang's life without parole sentence for murder stands.
P v. Smith (4th Dist., Div.2) After Rehearing, Denials of PC 1170.18 Petitions Again Reversed.
This opinion follows a rehearing. The original opinion is here and my comments on that opinion here.
The result is largely the same. The trial court's denials of the two counts at issue are again reversed.
The result is largely the same. The trial court's denials of the two counts at issue are again reversed.
P v. Jefferson (4th Dist., Div.2) PC 1170.18 Denial Affirmed; Defendant "Likely" to Murder if Sentence Reduced from 32 Months to 6 Months
In 1997, Mr. Jefferson, armed with a gun, committed a home invasion robbery in which he beat a victim to the point she needed 13 stitches. For this, Jefferson was sentenced to 16 years.
While in prison, Jefferson threatened one prison guard and threw "toilet wine" at another guard. There were other rules violations, but nothing violent.
In 2011 (the panel's page 12 reference to 2001 is a typo), Jefferson was paroled. He didn't do real well, accumulating 10 parole violations. While still on parole in September 2014, Jefferson stole a 25 dollar ink cartridge from a KMart. He pleaded to commercial burglary for a 32 month sentence.
Following the November 4, 2014, passage of Proposition 47, Jefferson petitioned the trial court to reduce his felony commercial burglary conviction to misdemeanor shoplifting. If granted, the result would be Jefferson's sentence would go from 32 months in prison to 6 months in county jail. Since Jefferson already had custody credits of 6 months, he would be released.
The trial court denied Jefferson's petition. While Jefferson's theft from KMart would have been misdemeanor shoplifting had Jefferson committed it after November 4, 2014, the trial court found that, if resentenced as a misdemeanant, Jefferson would be likely to commit murder, attempt to commit murder, or solicit someone else to commit murder. Thus, it denied Jefferson's petition under the "public safety" exception. Jefferson appealed.
The central issue here is whether the trial court abused its discretion in finding that, if given a misdemeanor sentence for stealing ink, Jefferson was "likely" to commit murder, attempted murder, or solicit murder. The panel, with very little analysis, answers "no". The electorate gave trial courts broad discretion for such decisions and the trial court's decision here is, according to the panel, within the bounds of reason.
As an aside, if my custody calculations are correct, Jefferson will have been released at time this opinion was published.
P v. Jones (4th Dist., Div.2) Summary Denial of PC 1170.18 Petition Reversed; Denial of Post Conviction Motion to Dismiss Prior Prison Term Affirmed
In 2013, Mr. Casey Jones sauntered into a Walgreens and stashed approximately 36 dollars worth of soap into his trousers before attempting to leave the store without paying. For this he was convicted of second degree commercial burglary, PC 459. Additionally, Jones admitted having served a prior prison term for a felony conviction of petty-theft-with-a-prior, former PC 666. He was sentenced and began serving his sentence.
After November 5, 2014, Jones filed a petition to reduce his prior PC 666 conviction to a misdemeanor pursuant to PC 1170.18. This petition was granted.
Then Jones filed another PC 1170.18 petition to reduce his current PC 459 felony conviction to a misdemeanor and to strike the prior prison term enhancement imposed on the basis of his, now misdemeanor, PC 666 conviction. The trial court denied both requests. While the prior prison term request was denied following a argument and analysis, the PC 459 reduction was denied without comment. Jones appealed.
The Fourth District affirms the denial of the request to strike the prior prison term enhancement, but reverses the denial of the PC 459 reduction.
The panel's affirmance of the denial regarding the prior prison term proceeds by way of statutory analysis. The panel holds that nothing in PC 1170.18 provides a procedure for the dismissal or striking of enhancements. While I have no quibble with the result, I find this broad statement less than convincing.
While there is no explicit language in 1170.18 regarding enhancements, it is unavoidable that 1170.18 will necessarily result in the dismissing and/or striking of certain enhancements. Prior prison terms may only be applied to felony sentences. In a case where a defendant is currently serving a sentence for a felony commercial burglary conviction and prior prison term enhancements, if this defendant's 1170.18 petition is granted as to the burglary conviction, resentencing requires the court to strike the prior prison term enhancements. Ditto for "strike" priors, which only apply to felony convictions.
But the result is reasonable, given that the 666 conviction remained a felony when Jones committed the instant offenses. Far more interesting is the issue of whether a 1170.18 reduction, granted prior to a current conviction, renders an otherwise qualifying prior prison term incapable of supporting a prior prison term enhancement.
On this issue, I side with the P v. Abdallah decision, finding it far superior to the that in P v. Acosta.
After November 5, 2014, Jones filed a petition to reduce his prior PC 666 conviction to a misdemeanor pursuant to PC 1170.18. This petition was granted.
Then Jones filed another PC 1170.18 petition to reduce his current PC 459 felony conviction to a misdemeanor and to strike the prior prison term enhancement imposed on the basis of his, now misdemeanor, PC 666 conviction. The trial court denied both requests. While the prior prison term request was denied following a argument and analysis, the PC 459 reduction was denied without comment. Jones appealed.
The Fourth District affirms the denial of the request to strike the prior prison term enhancement, but reverses the denial of the PC 459 reduction.
The panel's affirmance of the denial regarding the prior prison term proceeds by way of statutory analysis. The panel holds that nothing in PC 1170.18 provides a procedure for the dismissal or striking of enhancements. While I have no quibble with the result, I find this broad statement less than convincing.
While there is no explicit language in 1170.18 regarding enhancements, it is unavoidable that 1170.18 will necessarily result in the dismissing and/or striking of certain enhancements. Prior prison terms may only be applied to felony sentences. In a case where a defendant is currently serving a sentence for a felony commercial burglary conviction and prior prison term enhancements, if this defendant's 1170.18 petition is granted as to the burglary conviction, resentencing requires the court to strike the prior prison term enhancements. Ditto for "strike" priors, which only apply to felony convictions.
But the result is reasonable, given that the 666 conviction remained a felony when Jones committed the instant offenses. Far more interesting is the issue of whether a 1170.18 reduction, granted prior to a current conviction, renders an otherwise qualifying prior prison term incapable of supporting a prior prison term enhancement.
On this issue, I side with the P v. Abdallah decision, finding it far superior to the that in P v. Acosta.
Tuesday, July 5, 2016
P v. Trevino (2nd Dist., Div.6) A Camper Truck (RV) Is a Dwelling House For Purposes Of The Burglary Statutes
Mr. Trevino got hammered and then became pissed with his girlfriend (against whom he was restrained via a court order). Girlfriend took refuge inside a friend's camper truck. Friend and Friend's husband had lived in their camper for years. While Girlfriend, Friend, and Husband were sleeping inside the camper, Trevino, after an unsuccessful campaign to kick his way into the camper, wedged himself through a window. Once inside the camper, he beat upon Girlfriend and Friend.
For this, Trevino was tried and convicted of residential burglary. He appealed.
The Second District affirms.
Trevino makes a textual argument; that the term "house car" is used in the statute defining burglary, but not used in the statute that delineates residential burglary (1st deg.) from second degree burglary. The panel is not persuaded that the exclusion evinces a legislative intent for burglaries of "house cars" to constitute second degree burglaries. Prior cases had held an inhabited tent to be an inhabited dwelling house for purposes of the burglary statutes, despite the same textual deficiency. It is habitation that is key, according to the panel.
Just for fun, I looked up "dwelling-house" in Black's Law Dictionary.
For this, Trevino was tried and convicted of residential burglary. He appealed.
The Second District affirms.
Trevino makes a textual argument; that the term "house car" is used in the statute defining burglary, but not used in the statute that delineates residential burglary (1st deg.) from second degree burglary. The panel is not persuaded that the exclusion evinces a legislative intent for burglaries of "house cars" to constitute second degree burglaries. Prior cases had held an inhabited tent to be an inhabited dwelling house for purposes of the burglary statutes, despite the same textual deficiency. It is habitation that is key, according to the panel.
Just for fun, I looked up "dwelling-house" in Black's Law Dictionary.
A building, a part of a building, a tent, a mobile home, or another enclosed space that is used or intended for use as a human habitation.It would appear the camper truck here would fall under this definition as well.
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