P v. Mendoza (2nd Dist, Div.6) Granting a PC 1170.18 Petition Confers The Right To Resentence on any Component of an Aggregate Term

(A parenthetical to the title would read: appellate court recognizes the right of insecure and cynical trial judges to indulge in schadenfreude to assuage their disappointment at having their power curtailed.)

Prior to 2014, Mr. Mendoza was sentenced on two felony cases.  In the first case, the principal sentence, he was effectively sentenced to 7 years, 8 months.  The first case had three counts.  On count one, the sentence was 32 months plus a five year enhancement.  The sentences on counts two and three were 4 years, 8 months each count, to run concurrent.

In case number two, the subordinate sentence, the court imposed 16 months on the sole count, to run consecutive to case number one.  The total effective sentence was nine years.  

Four years on, the trial court granted Mendoza's petition under PC 1170.18 to reduce his conviction in case number two to a misdemeanor, with a maximum sentence of 12 months.  The effect was to reduce Mendoza's sentence from 9 years to 8 years, 8 months.  However, this reduction offended the trial judge.  So she resentenced Mendoza on case number one, increasing the sentence from 7 years 8 months to 9 years (meaning the total new sentence was 10 years).  Mendoza appeals.

The Second District affirms the ability of the trial court to resentence Mendoza on the primary sentence, despite it being unaffected by the PC 1170.18 petition (though it does reduce the effective sentence back to nine years).  The reasoning provides no succor to the intellectually hungry reader.  The sole justification is a citation to a banal aphorism contained within a decision of the same district on a different issue.  The true legal issue is by what mechanism a trial court regains jurisdiction over a case unaffected by a 1170.18 petition.  The reader will have to wait for a more capable panel (or court) to answer this question.

The real motivation behind all this nonsense is the insecurity that government job-holders feel when power, which they've acquired via fiat rather than individual merit, is curtailed (by fiat).  The trial judge here is one Patricia Murphy.  I have never appeared in Ventura's superior court, nor do I know anything about the Honorable Judge Murphy, but if I had to guess, I'd say she is a former prosecutor who ascended to the bench via a political appointment (likely by a Republican governor).  

P v. Wilson (3rd Dist) Enhancement Limitation in PC 1170.1(g) Doesn't Proscribe Imposition of PC 667(a)(1) Enhancement In Addition to a PC 12022.7 Enhancement

Mr. Wilson got drunk and drove a car into a house.  Wilson's brother was riding shotgun and suffered a broken leg and collapsed lung.  

Wilson was convicted of a DUI causing injury, along with an enhancement under PC 12022.7 for causing great bodily injury (GBI) to his brother.  The 12022.7 enhancement converted the DUI charge into a serious felony.  Wilson had suffered a prior conviction for attempted robbery, also a serious felony.  

Come sentencing, the trial court imposed a three year sentence for the DUI charge.  This was doubled due to the prior serious felony.  Three years was added for the 12022.7 (GBI) enhancement.  Lastly, a five year enhancement was imposed under PC 667(a)(1), a section that adds five years when a defendant with a prior serious felony commits a new serious felony.  The total sentence was 14 years.  Wilson appealed the sentence.

The Third District affirms.

The issue is whether it was permissible for the trial court to impose both the 12022.7 GBI enhancement and the 667(a)(1) enhancement.  This issue arises due to PC 1170.1(g), which states in pertinent part that,

[w]hen two or more enhancements may be imposed for the infliction of great bodily injury on the same victim in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. 

Wilson argues the trial court erroneous imposed two enhancements for his infliction of GBI upon his brother: [1] the 12022.7 enhancement for causing GBI, and [2] the 667(a)(1) enhancement for having a prior serious felony conviction (attempted robbery) and committing a new serious felony  (DUI w/GBI).  The argument is premised upon the fact that the present DUI w/injury offense only became a serious felony triggering the 667(a)(1) enhancement due to the GBI enhancement.  

The panel rejects this argument.  The result is probably correct, but the panel takes an intellectual shortcut that leaves a bad taste in my mouth.  The holding is that the 667(a)(1) enhancement does not punish Wilson for the present offense, but only punishes him as a recidivist.  This is half-true.  Section 667(a)(1) does not apply to every defendant with a prior conviction for a serious felony, rather it only applies to defendants with prior serious felony convictions who go on to commit a subsequent serious felony.  Since the infliction of GBI in the present case is a but-for cause of the 667(a)(1) enhancement, it is dishonest to state that the fact Wilson caused GBI to his brother is not part of the legal basis for the 667(a)(1) enhancement.  

It is more accurate to state that Wilson's 667(a)(1) enhancement is partially due to his status as a recidivist and partially due to his infliction of GBI upon his brother.  But admitting this truth would have created additional work for the panel in order for it to arrive at the chosen result.  And apparently it could not be bothered.  

P v. Learnard (2nd Dist, Div.1) Prior Strike Finding For Former PC 245(a)(1) Conviction Reversed For Insufficient Evidence

Mr. Learnard was charged with, and convicted of assault with a deadly weapon, a "strike" offense under California law.  Additionally, the jury found Learnard had two previous felony convictions.  The trial court found both of Learnard's two prior felonies were "strike" offenses and accordingly sentenced Learnard to 35 years to life.  Learnard appealed.

The Second District reverses the trial court's finding as to one of the prior felony convictions and remands for resentencing.

The prior felony conviction at issue is for violating former Penal Code section 245(a)(1).  At the time of Learnard's conviction, 245(a)(1) was a divisible statute that proscribed "assault with a deadly weapon or by any means of force likely to cause great bodily injury [GBI]".  Since felony assault with a deadly weapon is a "strike" offense while felony "assault by any means of force likely to cause [GBI]" is not a strike, simply knowing someone has a prior felony 245(a)(1) conviction isn't dispositive.  So the issue here is whether the evidence in front of the trial judge was sufficient for it to have found that Learnard's 245(a)(1) was for an assault with a deadly weapon.

In such cases, the court is permitted to examine the "record of conviction" and determine whether the record evinces which of the two types of assault the defendant committed.  Here the State introduced four items from the record in Learnard's previous 245(a)(1) conviction:  [1] the abstract of judgment, [2] the information to which he pleaded, [3] the transcript of the preliminary examination, and [4] a preconviction report from the probation department.  

Both the abstract of judgment and the information describe Learnard's offense as assault "with a deadly weapon, to wit, baseball bat, and by means of force likely to produce great bodily injury."  The preliminary examination transcript showed the victim testified that Learnard hit the victim with a baseball bat and grabbed him by the hands and tried to tear the victim out of the car.  The probation report, citing the police report, describes an assault with a baseball bat.  

As to the first two documents, the panel finds it a wash.  Because the allegation is stated in the conjunctive, it provides no evidence either way as to which theory Learnard pleaded.  The preliminary hearing is also inconclusive.  It provides evidence to support an assault with a deadly weapon (hitting with the bat) and also evidence to support an assault by means of force (putting hands on the victim).  As the reviewing court is prohibited from resolving factual issues, the preliminary examination transcript cannot be said to constitute substantial evidence.

Finally, the probation report is found to have no relevance in determining the basis of the conviction as it is simply inadmissible hearsay plucked from a police report.  In sum, since all of the relevant documents were ambiguous as to which type of assault Learnard pleaded, there was insufficient evidence to support the trial court's finding, and the case is remanded for resentencing.

By my calculation, Learnard's sentence should go from 35-life to 13 years.

[As an aside, 245(a)(1) is no longer a divisible statute.  The two types of assaults were separated; 245(a)(1) is now assault with a deadly weapon, while assault by force likely to cause GBI is now 245(a)(4).]

P v. Chenelle (1st Dist, Div. 1) Battery Is Not a Necessarily Included Lesser Offense of Lewd Acts on a Dependent Adult

Mr. Chenelle, who worked at an adult day care center, was accused of fondling the penis of a mentally and physically disabled client.  Chenelle was charged with violating Penal Code section 288(c)(2), committing a lewd act on a dependent adult while acting as a caretaker.  A jury convicted Chenelle and he appealed, arguing that the trial judge erred in not instructing the jury on the offense of misdemeanor battery, Penal Code section 242.

The First District affirms.

The threshold issue in this case is whether battery is a necessarily included lesser offense of 288(c)(2).  A trial judge must instruct on a necessarily included lesser offense if (a) there is substantial evidence the defendant is guilty on of the lesser.  The applicable test used to be whether the statutory elements of the greater offense include all the elements of the lesser offense.  The elements of 288(c)(2) being:

[1] the defendant was a caretaker of a dependent person;
[2] the defendant, while serving as caretaker, wilfully committed a lewd or lascivious act on that person; and,
[3] the defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the dependent person.

And the elements of 242, battery, being:

[1] the defendant willfully and unlawfully touched a person; and,
[2] the touching was done in a harmful or offensive manner.

Under this test, I would find that 288(c)(2) does not necessarily include all the elements of 242 because 288(c)(2) does not require the act (touching) to be offensive or harmful to the victim.  As I read the statutes, even if a dependent person desired sexual contact with a caretaker and was happy and satisfied to have received it while a charge of the caretaker, the elements of 288(c)(2) would still be satisfied.  

But alas, the case is not that simple.  During a period when the California Supreme Court's capacity for scholarship and pragmatism was at a nadir, Justice Chin penned his absurd opinion in the case of P v. Shockley.  Shockley dealt with an analogous issue of whether battery was a necessarily included lesser offense of lewd conduct on a minor under 14. As he is wont to do, rather than apply a recognized legal rule honed by years of experience and examination, Justice Chin creates his own tautological legal standard, and in doing so injects some unneeded novelty into the mix. 

Justice Chin's new "test" involves examining whether the "same evidence is required to support all elements of both offenses".  If so, then neither offense is a lesser of the other.  This is really nothing more than an unnecessary restatement of the question of whether substantial evidence exists that the defendant is guilty of only the lesser (the secondary requirement for the duty to instruct on a lesser).  Admirably, the panel here tacitly points out this fact and after applying Justice Chin's Delphic rule, finds that even if 242 is a necessarily included lesser offense, here there was no substantial evidence Chenelle was guilty of only the lesser.  

P v. Colbert (6th Dist.) Entering a Retail Shop With an Intent to Steal From a Back Office Is Not a Shoplift, PC459.5, Creating a Split Within Districts

Back in 1996, Mr. Colbert and an accomplice committed a series of commercial burglaries.  They would enter a retail store, and while one of them would distract the clerk, the other man would sneak into the store's back office and steal whatever was therein.  For a string of such burglaries, Colbert was convicted of multiple counts of felony commercial burglary.

Following the addition of sections 459.5 and 1170.18 to the Penal Code, Colbert returned to the trial court and petitioned to have a number of his felony commercial burglary convictions (those involving less than 950 dollars) reduced to misdemeanor shoplifts under PC 1170.18.  The trial court denied Colbert's petitions and he appealed.

Here the Sixth District affirms.

The opinion is a laughable and inept attempt to mask an unsupported inductive impulse as an exercise in statutory construction.  Were it not, the opinion would certainly have examined two recent opinions, one from the California Supreme Court, that examine similar facts and arrive at conclusions contrary to the one here (albeit the Supreme Court case dealt with a different statute).

The applicable statutory language in 495.5 is as follows.

 [S]hoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary[.]

The majority's reasoning is as follows; while the stores at issue are commercial establishments, they contain within them non-commercial establishments, to wit, the business offices.  To arrive at this conclusion, the panel notes the definition of commercial establishment as a place "relating to, or involved in the buying and selling of goods".  Okay so far.  But then it, without evidence or explanation, finds that the business offices were not related to the buying or selling of goods.  Huh?  Certainly the offices were not used for the display of merchandise, but that doesn't mean the offices were not related to the buying and selling of goods.  Unless the offices were used exclusively as living quarters or as gymnasiums, whatever went on within them undoubtedly related to the buying and selling of goods, e.g. placing orders, storing receipts, performing bookkeeping, etc.

To make this logical omission appear persuasive, the opinion must ignore both P v. Hallam and P v. Garcia.  The opinion achieves the latter and fails in the former.

There is a disciplined dissent by P.J. Rushing.  After reminding the majority that the crime of burglary is completed upon the initial entrance, he examines P v. Hallam, and finds it on-point.

As Hallam and the tripe at hand are irreconcilable, look for the California Supreme Court to possibly grant review on this issue in the future.

 

Harris v. Superior Court (Cal Supreme Ct.) There Is No "Benefit of the Bargain" Exception to PC 1170.18.

I previously posted on the Court of Appeal decision in this matter (found here).  

Mr. Harris bonked a man on the head and took the man's phone.  He was charged with robbery, PC 211, and pleaded down to felony grand theft from a person, PC 487 in exchange for a sentence of six years in prison (Harris' exposure on a 211 plea was 15 years).  

In November of 2014, while Harris was in prison, California passed Proposition 47, which reduced certain felony PC 487 crimes (Harris' included) to misdemeanors.  Harris petitioned the trial court to reduce his 487 to a misdemeanor.  The State, understandably, felt cheated and opposed the motion.  Additionally, should the motion be granted, the State wanted to be able to withdraw from the 487 plea agreement and reinstate the 211 charges.  The trial court agreed with the State and gave Harris the Hobson's choice of withdrawing his petition and going quietly back to prison or asserting his statutory right under PC 1170.18 and exposing himself to a 15 year sentence.

Harris petitioned for a writ of habeas corpus which was denied by the Second District in a 2-1 decision.  The California Supreme Court granted review and now reverses.  

The analysis here is interesting, in part, for what it omits, any review or discussion of the lower court's analysis.  In my opinion, this is the Supreme Court giving the lower court's analysis the attention it deserves.

The crux of the issue is the intersection of two prior holdings.  One, Doe v. Harris, that held that plea agreements implicitly incorporate any subsequent change in the law.  The other, P v. Collins, held that when, between the entry of a plea pursuant to a plea bargain and sentencing, a change in law results in the plea being to a crime that is no longer a crime, the State is permitted to withdraw from the plea bargain and reinstate the (still criminal) charges that were dismissed in consideration for the plea to the (now) non-crime.

Justice Chin concludes both that Doe controls and that Collins is distinguishable, in part, because here the change in law occurred post-sentencing.

Now Harris will return to the trial court to have his PC 1170.18 petition heard.