THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER SHAWN STRIKE, Defendant and Appellant.
G056949 (Super. Ct. No. 16CF2730)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Filed 2/11/20
CERTIFIED FOR PUBLICATION
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Larry Yellin, Judge. Affirmed in part, reversed in part, and remanded with directions.
Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews, Heidi Salerno and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant Christopher Shawn Strike of possession of a controlled substance in a penal institution (
On appeal, defendant seeks reversal of the court‘s finding that his prior gang participation conviction constitutes a strike under the Three Strikes law. He contends the court engaged in impermissible “judicial factfinding” in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution by finding facts that established his prior conviction qualifies as a strike. On the surface, the issue appears simple. In 2007, defendant pleaded guilty to one felony count of gang participation in violation of
Although the elements of gang participation in
During the trial proceedings in 2017, the court was tasked with determining whether defendant had admitted all the elements of
FACTS
The sole issue on appeal is whether defendant‘s prior gang participation conviction qualifies as a strike. The People alleged defendant was convicted in 2007 of violating
After the jury found defendant guilty of the substantive charges,2 the court conducted the hearing on the prior conviction allegation. The court admitted into evidence, without objection, a packet of documents from defendant‘s prior case: (1) the felony complaint; (2) the amended felony complaint; (3) the “Advisement and Waiver of Rights for a Felony Guilty Plea” (Tahl form)3 signed by defendant; (4) the “Terms and Conditions of Felony Probation” form signed by defendant; and (5) court minutes.
In the amended complaint filed in October 2007, defendant and another individual were charged with four offenses. Relevant here is the charge in count 3, which alleged: “On or about December 16, 2006, in violation of
The court considered the documents submitted by the prosecution, as well as briefs filed by both parties on the issue of whether defendant‘s prior gang participation conviction qualified as a strike.4 Defendant sought dismissal of the strike allegation, asserting the record of conviction for his prior gang participation conviction did not prove that he committed a felony offense with another member of his gang.
The court found the strike allegation true. Explaining its ruling, the court indicated it first looked at the factual basis for defendant‘s plea. But because the factual basis did not indicate another gang member committed a felony offense with defendant, the court considered “the entire Tahl form” and found it “states that [defendant] is pleading guilty to count 3 as alleged, which is a 186.22(a).” The court then reviewed the factual allegations in count 3 of the charging document, which alleged defendant and his codefendant were members of the same gang and promoted, assisted, or furthered felony criminal conduct by members of their gang. The court found the allegations in the charging document were sufficient to establish the post-Rodriguez requirement that defendant committed a felony with another member of his gang. Finding the strike allegation true, the court doubled the sentencing terms on each of defendant‘s convictions under the Three Strikes law.
DISCUSSION
On appeal, defendant argues the court‘s finding that his prior gang participation conviction constitutes a strike must be stricken. He contends the court engaged in impermissible judicial factfinding in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution by finding that he committed a felony with another gang member and that his prior conviction therefore qualifies as a strike. The Attorney General responds the court properly relied on the charging document and defendant‘s plea form to find the facts showing defendant‘s gang participation conviction was a strike. We conclude the court properly relied on defendant‘s plea form but erred by relying on the factual allegations in the charging document.
In 2012, the Supreme Court analyzed the third element of
Following the Supreme Court‘s decision in Rodriguez, a conviction for gang participation under
Thus, in 2017, when the prosecution sought to prove defendant‘s 2007 gang participation conviction qualified as a strike, the understanding of the elements of the offense had shifted.6 Rodriguez had narrowed the scope of
People v. Miles (2008) 43 Cal.4th 1074, 1082 [an alleged sentence enhancement must be proved beyond a reasonable doubt].)
We pause here to discuss our Supreme Court‘s decision in Gallardo, supra, 4 Cal.5th 120, as Gallardo created another shift in the law relevant to the issue before us. Gallardo disapproved prior precedent concerning what a court could examine in making findings when determining whether a prior conviction qualifies as a strike. Prior to Gallardo there was People v. McGee (2006) 38 Cal.4th 682 (McGee).7 In McGee, the Supreme Court considered whether “a criminal defendant has a right under the federal Constitution to have a jury, rather than the court, examine the record of [a] prior criminal proceeding to determine whether [an] earlier conviction subjects the defendant to an increased sentence when that conviction does not itself establish on its face whether or not the conviction constitutes a qualifying prior conviction for purposes of the applicable sentencing statute.” (McGee, at pp. 685-686.) The issue arose in McGee
In McGee, supra, 38 Cal.4th 682, the Supreme Court “held that the Sixth Amendment permits courts to review the record of a defendant‘s prior conviction to determine whether the crime qualifies as a serious felony for purposes of the sentencing laws.” (Gallardo, supra, 4 Cal.5th at p. 124.) Under McGee, a court was permitted to “review the record to determine whether ‘the conviction realistically may have been based on conduct that would not constitute a serious felony under California law.‘” (Gallardo, at p. 124.) McGee was reconsidered in Gallardo, following decisions by the United States Supreme Court in Descamps v. United States (2013) 570 U.S. 254
(Descamps) and Mathis v. United States (2016) 579 U.S. 500 [136 S.Ct. 2243] (Mathis), which discussed Sixth Amendment principles in addressing judicial factfinding in determining whether the defendants’ prior convictions qualified as specified priors under the Armed Career Criminal Act, a federal sentencing statute that prescribes increased sentences for defendants with certain prior convictions. (Gallardo, at pp. 124, 132-134.)
After reviewing Descamps and Mathis, the California Supreme Court in Gallardo was “persuaded that the approach sanctioned in McGee is no longer tenable insofar as it authorizes trial courts to make findings about the conduct that ‘realistically’ gave rise to a defendant‘s prior conviction.”8 (Gallardo, supra, 4 Cal.5th at p. 134.) Our Supreme Court acknowledged the decisions in Descamps and Mathis concerned interpretation of a federal statute but noted this interpretation was informed by Sixth Amendment principles and that the United States Supreme Court‘s “explication of those principles was both considered and unequivocal: The jury trial right is violated when a court adds extra punishment based on factfinding that goes ‘beyond merely identifying a prior conviction’ by ‘try[ing] to discern what a
conviction.‘” (Id. at p. 134.) Explaining its holding, our Supreme Court stated: “[W]e now hold that a court considering whether to impose an increased sentence based on a prior qualifying conviction may not determine the ‘nature or basis’ of the prior conviction based on its independent conclusions about what facts or conduct ‘realistically’ supported the conviction. [Citation.] That inquiry invades the jury‘s province by permitting the court to make disputed findings about ‘what a trial showed, or a plea proceeding revealed, about the defendant‘s underlying conduct.’ [Citation.] The court‘s role is, rather, limited to identifying those facts that were established by virtue of the conviction itself—that is, facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as the factual basis for a guilty plea.” (Id. at p. 136.)
With these principles from Gallardo in mind, we consider whether the court exceeded its role and violated defendant‘s rights under the Sixth and Fourteenth Amendments by finding defendant admitted certain facts that rendered his prior gang participation conviction a strike. In deciding whether the prosecution had proved the prior strike allegation, the court first looked at the factual basis for defendant‘s plea in the 2007 Tahl form, which stated: “In Orange County, California, on 12-16-06 in violation of
The court, however, strayed beyond permitted judicial factfinding with its next steps. The court indicated it looked at defendant‘s “entire Tahl form” and that the form reflected defendant pleaded “guilty to count 3 as alleged, which is 186.22(a)” (italics added) and that the remaining counts and enhancements were dismissed as part of the plea deal.9 From there, the court moved to the
Our review of the record indicates the court strayed beyond its limited role of identifying those facts defendant admitted as part of his plea and the court engaged in impermissible judicial factfinding. While we agree with the court that the Tahl form reflects defendant was pleading guilty to count 3, it does not indicate that he was pleading to the charge as alleged. And therein lies the problem. The court used its finding that
defendant pleaded “guilty to count 3 as alleged” as a springboard to get to the factual allegations in the charging document. But there is no indication in the record that defendant admitted count 3 as alleged or admitted the factual allegations in that count.10 Indeed, there is evidence to the contrary. The record indicates defendant pleaded guilty to the charge in count 3 but did not admit all of the factual allegations contained therein. The facts defendant did admit as to count 3 are those contained in the Tahl form as the factual basis for his plea. And in those facts, he does not admit committing a felony offense with another member of his gang. Because defendant did not admit the factual allegations in the charging document as part of his plea, they could not serve as the basis for finding the strike allegation true and increasing his sentence.11
The Attorney General also contends the court did not engage in impermissible judicial factfinding because it “properly relied on the amended complaint, which [defendant] necessarily adopted as the factual basis for his guilty plea.” We disagree. As discussed, there is no indication in the appellate record that defendant admitted the factual allegations in the charging document as part of the factual basis for his plea, and therefore, the court‘s reliance on them violated defendant‘s rights under the Sixth and Fourteenth Amendments. (Gallardo, supra, 4 Cal.5th at p. 135.)
We note, however, that reversal of a true finding on a prior conviction allegation does not prevent retrial of that enhancement. (People v. Barragan (2004) 32 Cal.4th 236, 241.) As explained in Gallardo, the appropriate remedy is to remand the case to the trial court for a new hearing on the prior strike allegation “to permit the People to demonstrate to the trial court, based on the record of the prior plea proceedings, that defendant‘s guilty plea encompassed a relevant admission about the nature of [his] crime.” (Gallardo, supra, 4 Cal.5th at p. 139 As we are vacating defendant‘s sentence and remanding the matter for further proceedings, we note the court erred by failing to designate the sentence stayed under section 654 for count 3 of his current charges (possession of a controlled substance of sale) and this must be corrected upon remand. “[W]hen a trial court determines that section 654 applies to a particular count, the trial court must impose sentence on that count and then stay execution of that sentence.” (People v. Alford (2010) 180 Cal.App.4th 1463, 1466.) Upon remand, the court must impose a sentence on count 3 before staying the term under section 654. DISPOSITION The court‘s true finding regarding the prior strike allegation is reversed and defendant‘s sentence is vacated. We remand the matter for retrial of the prior conviction allegation and resentencing. In all other respects, the judgment is affirmed. IKOLA, J. WE CONCUR: BEDSWORTH, ACTING P. J. ARONSON, J.