In re Richardson, 196 Cal. App. 4th 647

Background

Petitioner Jimmy Richardson was convicted in 2004 of assault with a deadly weapon and underwent a bifurcated trial to determine if his 1992 evasion conviction qualified as a strike under Three Strikes.
The trial court held that serious bodily injury under Vehicle Code § 2800.3 equaled great bodily injury for Three Strikes purposes and that this was a legal question for the court, not the jury.
The court also decided the jury would determine whether the victims of the 1992 evasion were accomplices, relying on limited record evidence and a prior unpublished opinion as context.
Richardson’s 1992 evasion conviction involved him crashing a vehicle while fleeing officers, injuring two mobilehome occupants, with record statements suggesting the victims were not accomplices.
Based on the above, the trial court found the 1992 evasion conviction qualified as a strike and sentenced Richardson to 25-to-life plus 14 years under Three Strikes.
Richardson’s direct appeal (2006) challenged several aspects, including Adjudication of injuries and admission of probation-report evidence; the California Supreme Court denied review in 2006, issuing a remittitur in December 2006.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial counsel’s Apprendi-based objection was required and failed	Richardson argues trial counsel should have objected to treating 2800.3 as great bodily injury and to non-jury determinations.	Richardson’s counsel did not render deficient performance as Kelii/Epps control and Apprendi does not require a jury for prior-strike determinations.	No reversible error; trial court correctly treated 2800.3 as legal, not juried, and plead evidence supported the finding.
Whether there was substantial evidence Richardson inflicted serious bodily injury in the 1992 evasion	Prosecution contends there was evidence Richardson caused serious bodily injury personally.	Trial record, including the plea and additional evidence, supported personal infliction of serious bodily injury.	Evidence was sufficient; plea plus record supported the finding Richardson personally inflicted serious bodily injury.
Ineffective assistance of appellate counsel for not challenging probation-report evidence	Appellate counsel should have argued that probation-report admissions were inadmissible to prove a strike given Trujillo’s potential impact.	Counsel’s performance was reasonable given then-existing law; Trujillo was not decided yet and reliance on then-authorized authorities was reasonable.	No ineffective assistance; counsel reasonably relied on prevailing law and did not breach a duty to foresee Trujillo.
Ineffective assistance for not seeking recall of remittitur based on Trujillo	Counsel should have moved to recall remittitur in light of Trujillo and its retroactivity implications.	No valid basis to recall remittitur; relief would not change outcome, and prerogatives to recall are limited.	No ineffective assistance; recall was unwarranted and would not have altered outcome.
Whether Richardson is entitled to recall the remittitur now under Trujillo retroactivity	He argues that Trujillo should apply and retroactivity could benefit him if remittitur recalled.	Retroactivity not warranted; additional evidence in the appellate record supports the strike qualification irrespective of Trujillo.	No recall of remittitur; Trujillo retroactivity not applied to grant habeas relief here.

Key Cases Cited

People v. Guerrero, 44 Cal.3d 343 (1988) (record-of-conviction admissibility for strikes)
People v. Monreal, 52 Cal.App.4th 670 (1997) (probation report admissions as part of record of conviction)
People v. Reed, 13 Cal.4th 217 (1996) (probation-report admissions admissible under certain standards)
People v. Trujillo, 40 Cal.4th 165 (2006) (post-plea admissions not part of record of conviction; affects strike analysis)
People v. Kelii, 21 Cal.4th 452 (1999) (prior conviction as a question of law for Three Strikes)
People v. Epps, 25 Cal.4th 19 (2001) (split on whether prior-conviction question is legal for Three Strikes)
People v. McGee, 38 Cal.4th 682 (2006) (treatment of serious-felony determinations under Three Strikes)
Woodell, 17 Cal.4th 448 (1998) (appellate opinions as part of record of conviction for strikes)
In re Thomas, 37 Cal.4th 1249 (2006) (deference to counsel's strategic decisions; standard for performance)
In re Gray, 179 Cal.App.4th 1189 (2009) (remittitur recall power; standard and limitations)
Pacific Legal Foundation v. California Coastal Com., 33 Cal.3d 159 (1982) (remittitur recall limits; not to correct judicial error)
In re Pine, 66 Cal.App.3d 593 (1977) (finality and retroactivity principles)