People v. Washington CA2/7, B257234

Background

Over a two-week period in January 2012, William Washington entered multiple 24 Hour Fitness locations, stole items from lockers (credit cards, phones, keys), and used or attempted to use stolen credit cards at retail stores; police later found stolen property and cocaine in his motel room.
The People charged Washington with multiple counts of second-degree burglary, theft/possession of identifying information (Pen. Code § 530.5), one count of grand theft, receipt of stolen property, and possession of a controlled substance; prior convictions and a prior prison term were alleged.
Washington proceeded largely pro se at times, had appointed and substituted counsel intermittently, and standby counsel Tobin was reappointed shortly before trial; Tobin provided a witness list on the eve of trial.
The jury convicted Washington on virtually all counts presented at trial (with some dismissals/acquittals) and found true a prior prison term enhancement tied to case No. BA324564.
The trial court imposed an aggregate term of 24 years, 8 months: several doubled upper terms under California’s Three Strikes scheme and consecutive 16-month terms on many counts; the court doubled sentences under Three Strikes but did not either impose or strike the 1-year prior-prison enhancement; the abstract of judgment misstated the disposition of count 16.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Denial of continuance on Aug. 13, 2013	Denial was proper because defendant delayed and counsel had had opportunities to prepare; court acted within discretion.	Denial deprived counsel time to investigate and secure witnesses, prejudicing defense.	No abuse of discretion; defendant failed to show due diligence or prejudice; any error harmless given strength of evidence.
Consecutive sentences for identity-theft counts following burglaries	Consecutive terms justified by multiple victims, separate acts, and aggravating factors (prior convictions, probation/parole performance).	Sentences should run concurrently because the card uses were part of the same scheme as the locker burglaries.	No abuse of discretion; rule 4.425 factors (separate victims, independent objectives, aggravation) supported consecutive terms.
Doubling under Three Strikes without explicit jury finding of "serious felony" prior	The jury’s finding that defendant suffered the prior conviction (case BA324564) and served a prior prison term necessarily encompassed the factual predicate; whether that prior qualifies as a "serious felony" is a legal question for the court.	Jury did not return a separate true finding that the prior was a §667(b)-(i) serious felony, so doubling was improper.	Court may double: jury’s finding as to case BA324564 and the prior prison term sufficed; whether the prior is a "serious felony" is legal for the court to decide.
Failure to impose or strike §667.5(b) prior-prison enhancement	People asked remand so court can either impose the mandatory 1-year enhancement or exercise discretion to strike it.	(Defendant did not contest remand remedy.)	Error: the trial court must either impose or strike the §667.5(b) enhancement; remand for the court to choose.
Abstract of judgment error re: count 16	People: abstract must be corrected to reflect oral pronouncement (stay on count 16).	Defendant: N/A.	Remand to correct abstract of judgment to match oral sentencing (count 16 stayed).

Key Cases Cited

People v. Fuiava, 53 Cal.4th 622 (standard of review and continuance discretion)
People v. Doolin, 45 Cal.4th 390 (continuance/good-cause and opportunity to prepare)
People v. Jenkins, 22 Cal.4th 900 (continuance to secure witnesses; due diligence requirement)
People v. Williams, 99 Cal.App.4th 696 (prior-finding in one enhancement can support another when based on same prior conviction)
People v. Langston, 33 Cal.4th 1237 (§667.5(b) one-year prior-prison enhancement is mandatory unless stricken)
People v. McGee, 38 Cal.4th 682 (court decides as a matter of law whether prior conviction qualifies as a "serious felony")