Opinion
G051927
06-20-2017
THE PEOPLE, Plaintiff and Respondent, v. BAO THAI NGUYEN, Defendant and Appellant.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Arlene A. Sevidal, Collette C. Cavalier and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12WF3428) OPINION Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed as modified. Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Arlene A. Sevidal, Collette C. Cavalier and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Bao Thai Nguyen of two counts of second degree commercial burglary (Pen. Code, §§ 459, 460; counts 1, 11), four counts of second degree robbery (§§ 211 & 212.5, subd. (c); counts 2-4, 12), five counts of kidnapping to commit robbery (§ 209, subd. (b)(1); counts 5-7, 13 & 15), and nine counts of false imprisonment (§§ 236 & 237, subd. (a); counts 8-10, 16-21). The jury also found true allegations defendant personally used a firearm within the meaning of section 12022.53, subdivision (b) while committing counts 2 through 7 and 12, 13, and 15 and within the meaning section 12022.5, subdivision (a) during the commission of counts 1, 8 through 11, and 16 through 21.
All further undesignated statutory references are to the Penal Code.
Before the jury returned its verdict, the trial court dismissed count 14 (kidnapping to commit robbery) and the personal use of a firearm enhancements (§12022.5, subd. (a)) for counts 2, 3, 4, and 12.
The trial court dismissed an allegation defendant had served a 1996 prior prison term (§ 667.5, subdivision (b)), but found true he had served prison terms for two offenses committed in 2008 and 2001, and had committed a prior serious felony (§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)), all in Arizona. It subsequently struck the 2008 prison prior "for purposes of sentencing only" and dismissed all false imprisonment counts (counts 8-10, 16 & 18) because they were lesser included offenses of kidnapping to commit robbery. The court imposed a sentence of 145 years to life plus 21 years.
Defendant argues: (1) his convictions for kidnapping to commit robbery should be reversed due to insufficient evidence; (2) his February 8, 2008 Arizona prison prior for theft by means of transport should be stricken because it does not include all elements of a California crime; (3) his burglary convictions should be reduced to misdemeanor shoplifting; and (4) the court erred in imposing a five-year sentence for the prior allegations for each of the kidnapping for robbery convictions. We reject these contentions and affirm the judgment.
FACTS
Hair Salon Incident - Counts 1 through 10
One morning, three women - the owner, an employee, and a customer - were near the front entry of a hair salon, located in a strip mall facing a busy street with a lot of traffic. Defendant entered, pointed a gun at them, and asked for money. After the employee gave him the money from the register, defendant grabbed the owner's cellular telephone from the counter. Defendant then moved all three women to the back of the 1000-square-foot salon and into a side room used for eating. The room is not visible from either the front or back doors, as a turn must be made and a door opened to enter it. Once there, defendant demanded the women's jewelry and money, and zip-tied their hands. The employee said she had more money in her purse that she had left at the front of the store, but on her way to retrieve it she broke and ran. At that point, defendant ran out the back door.
The owner testified she was traumatized by the events and the employee said she could not sleep. She is "still very scared" whenever she is reminded of the robbery.
Tofu Store Incident - Counts 11 through 13, 15 through 21
The next day, defendant and another man entered a tofu store. Defendant pulled out a gun and took the phone of a customer who was making a purchase at the register. He then moved her and the cashier to the back of the store, where he took the customer's purse before moving them into the freezer, and locking them in. It was 10 to 15 minutes before someone could get them out.
DISCUSSION
Sufficiency of the Evidence
Defendant argues insufficient evidence supports his convictions for kidnapping to commit robbery (counts 5, 6, 7, 13, & 15). We disagree.
"'On appeal, an appellate court deciding whether sufficient evidence supports a verdict must determine whether the record contains substantial evidence - which we repeatedly have described as evidence that is reasonable, credible, and of solid value - from which a reasonable jury could find the accused guilty beyond a reasonable doubt.' [Citations.] We presume in support of the judgment 'the existence of every fact the trier could reasonably deduce from the evidence.'" (People v. Vines (2011) 51 Cal.4th 830, 869 (Vines), superseded by statute on another point as recognized in People v. Robertson (2012) 208 Cal.App.4th 965, 981.)
Prior to 1997, "kidnapping for robbery, or aggravated kidnapping, required movement of the victim that (1) was not merely incidental to the commission of the robbery, and (2) substantially increased the risk of harm over and above that necessarily present in the crime of robbery itself." (Vines, supra, 51 Cal.4th at pp. 869-870.) In 1997, the Legislature eliminated "the requirement that the movement of the victim 'substantially' increase the risk of harm to the victim." (Id. at p. 869, fn. 20.)
The above two elements "are not mutually exclusive but are interrelated." (Vines, supra, 51 Cal.4th at p. 870.) "'[W]hether the victim's forced movement was merely incidental to the [underlying offense] is necessarily connected to whether it . . . increased the risk to the victim.' [Citation.] '[E]ach case must be considered in the context of the totality of its circumstances.' [Citation.]" (People v. James (2007) 148 Cal.App.4th 446, 454 (James).)
"With regard to the first prong, the jury considers the 'scope and nature' of the movement, which includes the actual distance a victim is moved. [Citations.] There is, however, no minimum distance a defendant must move a victim to satisfy the first prong." (Vines, supra, 51 Cal.4th at p. 870.) "'Incidental' means 'that the asportation play no significant or substantial part in the planned [offense], or that it be a more or less "'trivial change[] of location having no bearing on the evil at hand.'"' [Citation.]" (James, supra, 148 Cal.App.4th at p. 454.)
"As a general rule, 'when in the course of a robbery a defendant does no more than move his victim around inside the premises in which he finds him . . . his conduct generally will not be deemed to constitute [aggravated kidnapping].' [Citation.] This is true whether the robbery is residential or commercial. This is because '. . . robbery of a business owner or employee includes the risk of movement of the victim to the location of the valuables owned by the business that are held on the business premises.' [Citation.]" (James, supra, 148 Cal.App.4th at pp. 455-456.) Thus, "There is no rigid 'indoor-outdoor' rule by which moving a victim inside the premises in which he is found is never sufficient asportation for kidnapping for robbery while moving a victim from inside to outside (or the reverse) is always sufficient." (Id. at p. 456.)
By itself, "that the movement of a robbery victim facilitates a robbery does not imply that the movement was merely incidental to it . . . . Similarly, a movement of the victim that is necessary to the robbery might or might not be merely incidental based on the circumstances." (James, supra, 148 Cal.App.4th at p. 454.) On the other hand, "movement . . . unnecessary to the target offense and [which does] not facilitate it [is] not merely incidental to it." (Id. at p. 455, fn. omitted; accord, People v. Leavel (2012) 203 Cal.App.4th 823, 828.)
"'"The second prong of the Daniels test refers to whether the movement subjects the victim to a[n] . . . increase in risk of harm above and beyond that inherent in [the underlying crime]. [Citations.] This includes consideration of such factors as the decreased likelihood of detection, the danger inherent in a victim's foreseeable attempts to escape, and the attacker's enhanced opportunity to commit additional crimes. [Citations.] The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased."'" (Vines, supra, 51 Cal.4th at p. 870.) Although there is no rigid rule, "it has often been held that defendants . . . who moved their victims to more secluded or enclosed areas did substantially increase the risk" of harm to the victim. (James, supra, 148 Cal.App.4th at p. 456.) Thus, in James, the court concluded the robbery of a business employee includes the risk of movement of the victim to the location of the valuables owned by the business that are held on the business premises, but "does not include the risk that other individuals will be moved, at gunpoint, from the relative safety of the outdoors, into the business premises for the duration of the robbery." (Id. at p. 457.)
Moreover, increased harm includes psychological harm. (See People v. Nguyen (2000) 22 Cal.4th 872, 886 (Nguyen).) As Nguyen held, "substantial movement of a victim, by force or fear, which poses a substantial increase in the risk of psychological trauma to the victim beyond that to be expected from a stationary robbery, seems an entirely legitimate basis for finding a separate offense. To conclude the word 'harm,' as used in section 209, subdivision (b), includes psychological harm is thus reasonable." (Ibid., fn. omitted; see People v. Aguilar (2004) 120 Cal.App.4th 1044, 1050 [movement of rape victim to dark area increased risk of "'psychological trauma . . . beyond that to be expected from a stationary' sexual attack"].)
Hair Salon Incident (Counts 5, 6 & 7)
Defendant contends the movement of the owner, employee and customer of the hair salon (counts 5, 6 & 7) "was essential to" and "part and parcel of the robbery" because the movement occurred before they were personally robbed. We disagree.
As James explained, "A movement necessary to a robbery may or may not be merely incidental to it. Lack of necessity is a sufficient basis to conclude a movement is not merely incidental; necessity alone proves nothing." (James, supra, 148 Cal.App.4th at p. 455, fns. omitted.) James noted "[a] similar logical error appears in People v. Hoard (2002) 103 Cal.App.4th 599, 605-606 [(Hoard)]," which criticized a case holding "that a movement that was not necessary to the commission of a rape was not incidental to it. The Hoard court states, 'Stated affirmatively, according to [the criticized case], necessary movement is incidental movement.'" (James, supra, at p. 455, fn. 8.) James determined this "conclusion simply does not follow." (Ibid.)
Here, defendant did not, as he contends, simply move his victims around the premises in which he found them. He moved them into a back room out of view from either the front or back door. He did so despite the fact no movement was required in order to rob the victims of their personal items. Having already seized the money from the register, and the salon owner's cellular telephone, he could have taken the women's jewelry and cash where they stood - near the front of the salon - without moving them into the back room and zip-tying their hands. Their movement made it less likely defendant would be detected while he was committing the crimes. Movement intended to make commission of the crime easier, the victim more vulnerable, or the offender less detectable, is not considered "incidental" movement. (See Vines, supra, 51 Cal.4th at pp. 841, 871 [court could not say "'scope and nature'" of moving victims "from the front of the store, down a hidden stairway, and into a locked freezer" after manager had already opened safe "was 'merely incidental' to the commission of the robbery"]; Corcoran, supra, 143 Cal.App.4th at pp. 279-280 [forced movement of the victim after robbery was aborted was clearly excessive and gratuitous and not merely incidental to the attempted robbery]; People v. Shadden (2001) 93 Cal.App.4th 164, 169 (Shadden) [dragging store clerk nine feet from front counter of store to small back room to commit rape was not merely incidental where movement it was "neither part of nor necessary to the rape"]; People v. Salazar (1995) 33 Cal.App.4th 341, 347 (Salazar) [dragging victim into motel room from hallway not incidental to rape; defendant could have raped victim outside motel room door and avoided moving her at all].)
These facts distinguish this case from People v. Washington (2005) 127 Cal.App.4th 290, 299 ["There was no excess or gratuitous movement of the victims over and above that necessary [i.e., moving bank manager and teller to vault room to open vault] to obtain the money in the vault"] and Hoard, supra, 103 Cal.App.4th at p. 607 [moving two jewelry store employees to a back office "served only to facilitate [robbery] with no other apparent purpose" by giving him "free access to the jewelry and allow[ing] him to conceal the robbery from any entering customers"] cited by defendant. We also observe those cases involved kidnapping to commit robberies of business establishments, and not robberies of individual persons. (See James, supra, 148 Cal.App.4th at p. 457 ["It is significant here that the underlying crime was not the robbery of Gonzalez, the but the robbery of the Bingo Club"].)
Moving the victims to the back room out of view of the public also increased the risk of harm to them by removing them from public view, decreasing the likelihood of their detection, increasing the likelihood of harm if anyone tried to flee, as well as causing psychological harm, and giving defendant the enhanced opportunity to commit additional crimes. (See Vines, supra, 51 Cal.4th at p. 871 [movement of victims "from front of the store, down a hidden stairway, and into a locked freezer . . . subjected the victims to a substantially increased risk of harm because of the low temperature in the freezer, the decreased likelihood of detection, and the danger inherent in the victims' foreseeable attempts to escape such an environment"]; Corcoran, supra, 143 Cal.App.4th at p. 280 [moving victims to windowless back room substantially increased risk of harm by removing them from public view, decreasing odds the attempted robbery would be detected, and increasing risk of harm for any victim attempting to flee]; Shadden, supra, 93 Cal.App.4th at p. 170 [moving victim to the back room "placed her out of public view,[which] made it less likely for others to discover the [rape,] . . . decreased the odds of detection [and] enhanced his opportunity to rape and injure her"]; Salazar, supra, 33 Cal.App.4th at p. 348 [having dragged victim into motel room, the defendant decreased likelihood of anyone detecting crime and "in the confinement and isolation of the motel room, [the defendant] had [the victim] in a vulnerable position from which he had an enhanced opportunity to perpetrate any additional crimes he desired"].)
Defendant acknowledges the victims "were removed from public view" but argues "the risk of physical harm was not greater than in the open store primarily because the firearm was put away after the victims were moved." The fact the firearm was not displayed is of nugatory import. The gun could have been pulled back out at any time for any reason, such as if any of the victims had resisted or attempted to flee. Nor does the fact defendant put the gun away decrease any of the other risks of harm to the victims. "'"The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased."' [Citations.]" (Vines, supra, 51 Cal.4th at p. 871.) And in this case, the danger of psychological harm did materialize, as the salon owner testified the robbery left her traumatized and the employee remains scared to this day whenever she is reminded of the incident.
The evidence sufficed to support the jury's verdict on counts 5, 6 and 7. The judgment is affirmed as to those counts.
Tofu Store Incident (Counts 13 and 15)
Defendant raises the same insufficiency of the evidence arguments for counts 13 and 15 as for counts 5, 6 and 7. We again reject them.
Defendant asserts he did not rob the customer (count 13) until he moved her into the back room and therefore he did nothing other than move her around the premises. As we have stated, whether a victim is moved before or after the intended crime is not the issue. And, as with the hair salon incident, moving the customer was not necessary to take her purse. Defendant could have done so at the register, inasmuch as he had already taken her cellular phone there.
Defendant does not make any particular argument with respect to the cashier.
Defendant summarily states, "the movement did not increase the risk of harm above that which existed prior to the movement, did not decrease the likelihood of detection and did not increase both the danger inherent in any foreseeable attempt to escape nor create an enhanced opportunity to commit additional crimes." But he himself acknowledges the situation involved the risk of psychological harm, as it was "undoubtedly frightening." Additionally, the fact the customer and the employees were not mistreated or harmed and none appeared upset, with one employee working continuing to work seemingly unfazed, does not disprove their risk of harm.
Having been moved from the front of the store to the back, the cashier and customer had an increased risk of harm because they had been moved from the public view, their plight was less likely to be detected, and there was a greater possibility of additional crimes and harm should anyone attempt to flee. In addition, defendant moved the victims into the freezer. In Vines, supra, 51 Cal.4th at page 871, the Supreme Court concluded the movement of the victims "into a locked freezer" "substantially increased risk of harm because of the low temperature in the freezer, the decreased likelihood of detection, and the danger inherent in the victims' foreseeable attempts to escape such an environment." It would be difficult to find a more authoritative refutation of defendant's argument here.
Defendant argues the security video shows the victims being taken out of view of the camera but not into a freezer. But this ignores the testimony of the customer that she and the employees were moved into the freezer after her purse was taken. Her testimony constitutes substantial evidence. (See People v. Barnwell (2007) 41 Cal.4th 1038, 1052 ["Even when there is a significant amount of countervailing evidence, the testimony of a single witness" may be sufficient to constitute substantial evidence].)
Defendant concedes being herded into a freezer "is a substantial factor" to consider but asserts other factors must be considered as well. He distinguishes Vines on the basis the robbery there did not take place until after the manager and employees were locked in the freezer while in this case the tofu store customer's purse was taken when she was moved into the back room. But again, defendant misses the point, which is that a jury could reasonably find the movement of the victims was unnecessary and therefore not incidental in both cases.
Striking 2008 Arizona Conviction
Defendant next contends the February 8, 2008 Arizona prison prior for theft by means of transport should have been stricken because it does not meet all of the elements of a California crime. The Attorney General responds this is unnecessary because this prison prior was struck "for purposes of sentencing only" and thus was "effectively stricken for any possible purpose." We believe it is necessary.
Under section 667.5, subdivision (b), a defendant receives a one-year enhancement to his current sentence for "each prior separate prison term . . . imposed . . . for any felony." For the purpose of the enhancement, "[a] prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense which includes all of the elements of the particular felony as defined under California law if the defendant served one year or more in prison for the offense in the other jurisdiction." (Id., subd. (f).) Accordingly, the one-year enhancement set forth in section 667.5, subdivision (b) is properly applied only if the offense of theft by means of transport for which defendant was sentenced in the 2008 Arizona conviction "includes all of the elements of the particular felony as defined under California law[.]" (§ 667.5, subd. (f); see People v. Riel (2000) 22 Cal.4th 1153, 1203 [applying § 667.5, subd. (f)] (Riel).)
Similarly, section 668 states for the purpose of imposing an enhancement based on a prior conviction or a prior prison term, "[e]very person who has been convicted in any other state . . . of an offense for which, if committed within this state, that person could have been punished under the laws of this state by imprisonment in the state prison, is punishable for any subsequent crime committed within this state in the manner prescribed by law and to the same extent as if that prior conviction had taken place in a court of this state."
Arizona Revised Statutes section 13-1814(A)(5), under which defendant was convicted, states: "A person commits theft of means of transportation if, without lawful authority, the person . . . [¶] . . . [¶] Controls another person's means of transportation knowing or having reason to know that the property is stolen." (Italics added.) In California, however, receiving stolen property is a specific intent crime that requires the prosecution to show the defendant knew the property was stolen when it was received. (§ 496, subd. (a) ["knowing the property to be so stolen or obtained"]; People v. Reyes (1997) 52 Cal.App.4th 975, 985.)
Although defendant is correct that "[t]he Arizona statute does not unequivocally require that a defendant 'knew' the vehicle to be stolen as does California, [i]nstead . . . allow[ing] conviction if a defendant has simply a reason to know the vehicle to be stolen," that is not the end of the inquiry. Rather, where the foreign crime does not include all of the elements of a California felony, the prosecution may present evidence proving the actual crime constituted a felony under California law. (Riel, supra, 22 Cal.4th at pp. 1204-1205.)
But that was not done here. "The prosecution has the burden of proving beyond a reasonable doubt each element of a prior conviction used to enhance a defendant's sentence. [Citation.]" (People v. Rodriguez (2004) 122 Cal.App.4th 121, 128.) The element at issue here is whether appellant's 2008 Arizona felony conviction constituted a felony under California law. Since the elements of Arizona and California's receiving stolen property statutes do not match up, the prosecution had to show, based on the record of appellant's prior conviction, that appellant knew the property he received in Arizona was stolen. (Riel, supra, 22 Cal.4th at p. 1203 [applying § 667.5, subd. (f)].) Since the prosecution did not establish that fact, there is not sufficient evidence to support the trial court's true finding on the prior prison term allegation, and that finding must be reversed. (Id. at p. 137.)
This is true, even though, as our opinion points out, we generally presume that a judgment is correct. That presumption does not apply in reviewing the sufficiency of the evidence to support a conviction or true finding in a criminal case. Unless there is substantial evidence to support the trial court's true finding on the subject enhancement, that finding must be reversed as a matter of due process. (People v. Rowland (1992) 4 Cal.4th 238, 269.) It is not enough that the enhancement was stricken for sentencing purposes. The judgment must be modified to strike the true finding itself because the People did not meet their burden.
Reduction of Burglary Convictions to Misdemeanor Shoplifting
During sentencing, defendant argued Proposition 47, the Safe Neighborhoods and Schools Act, should be applied to reduce his burglary convictions (counts 1 and 11) to misdemeanor shoplifting because there was no evidence showing any of the stolen items exceeded $950. He contends the court erred in not doing so. No error occurred.
As the person seeking relief under Proposition 47, defendant "had the burden to show the property loss in [counts 1 and 11] did not exceed $950 and thus fell within the new statutory definition of shoplifting." (People v. Sherow (2015) 239 Cal.App.4th 875, 877.) Defendant failed to present any evidence on the issue. Accordingly, he was not entitled to relief. (Ibid.)
Imposition of Five-Year Serious-Prior Enhancements
The trial court imposed five-year prior strike enhancements for each of the five indeterminate counts (counts 5, 6, 7, 13, and 15) and one for the determinate count (count 17). Defendant contends the trial court could not properly impose the section 667, subdivision (a)(1) enhancement on the indeterminate terms. Again, we are not persuaded.
Defendant's argument is based on People v. Sasser (2015) 61 Cal.4th 1, 7 (Sasser), which held that a single five-year prior serious felony conviction enhancement (§ 667, subd. (a)) may be added only once to multiple determinate terms (arising out of multiple present convictions). But Sasser is inapposite as it did not concern indeterminate sentences. As Sasser stated, "the only question before us is whether the trial court erred in adding a five-year prior serious felony enhancement to each of Sasser's seven determinate terms." (Sasser, supra, 61 Cal.4th at p. 12, italics added; People v. Knoller (2007) 41 Cal.4th 139, 155 [an opinion is not authority for propositions not considered].) Defendant here is claiming that multiple enhancements for prior convictions were improperly imposed to enhance the five indeterminate terms.
Regarding indeterminate terms, Sasser described the court's early opinion in People v. Williams (2004) 34 Cal.4th 397 (Williams), which "addressed whether the five-year prior serious felony enhancement can be applied to multiple indeterminate Three Strikes sentences." (Sasser, supra, 61 Cal.4th at p. 12.) Sasser explained Williams's rationale for why the answer is yes: "Because the Three Strikes law does not distinguish between status-based enhancements and offense-based enhancements in the same manner as section 1170.1, and because the Three Strikes law 'generally discloses an intent to use the fact of recidivism to separately increase the sentence imposed for each new offense,' we concluded that 'section 667(a) enhancements are to be applied individually to each count of a third strike sentence.' [Citation]" (Ibid.)
In People v. Misa (2006) 140 Cal.App.4th 837 (Misa), the Fourth Appellate District concluded that "a similar analysis" to that employed in Williams applied to a second strike offender who was not subject to an indeterminate sentence under the three strikes law, but rather subject to an indeterminate sentence because of his torture conviction. (Misa, supra, at pp. 846-847.) In Misa, the defendant was convicted of one count of torture and two counts of assault with a deadly weapon by means of force likely to cause great bodily injury. (Id. at p. 840.) The trial court sentenced the defendant to serve an indeterminate life sentence on the torture count, a determinate term on one assault count, and stayed punishment on the second assault count, plus separate five-year enhancements under section 667, subdivision (a)(1) on each count. (Id. at p. 841.) The court held, "Although [the defendant] was a second strike defendant rather than a third striker, he is nonetheless a recidivist and . . . is thus subject to a prior conviction enhancement under section 667, subdivision (a) on the torture count even though he also received a similar enhancement relating to the assault count." (Id. at p. 847.) In so holding, Misa reasoned that although Williams dealt with the issue of multiple prior conviction enhancements on a third strike offender, "a logical application of the Williams analysis in [the] context [of a second strike offender with an indeterminate sentence] would require the imposition of the prior conviction enhancement on [the defendant's] second strike offense (the torture count) notwithstanding that the enhancement was also imposed as a status enhancement relating to the determinate term on the assault count." (Misa, supra,, at p. 846.) Misa's reasoning is persuasive and we apply it here.
Defendant claims "the Misa opinion's reliance on Williams to support its holding is no longer valid." His argument is based on Sasser's statement, "But Williams said nothing about application of enhancements to second strike defendants who receive doubled determinate sentences under section 667(e)(1). Williams addressed the applicability of enhancements in the context of indeterminate sentences imposed on 'each count of a third strike sentence.' [Citation.] We had no occasion to consider sentences arising in other contexts that implicate the Three Strikes scheme." (Sasser, supra, 61 Cal.4th at p. 13, italics added.) But Sasser did not overrule Williams. It merely distinguished Williams from the case before it, on the basis that Williams did not involve determinate sentences. Neither does this case. Williams remains good law, as does Misa.
DISPOSITION
The judgment is modified to delete the "true finding" on appellant's 2008 prison prior in Arizona. As modified, the judgment is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. IKOLA, J.