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: 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.