Opinion
C080894
04-20-2018
THE PEOPLE, Plaintiff and Respondent, v. ERIC JAMES PIONA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 62137746)
Defendant Eric James Piona retrieved a car he did not own from the valet at a casino after he found the victim's valet ticket. He pleaded no contest to unlawfully driving or taking a vehicle. (Veh. Code, § 10851, subd. (a).) As part of the plea agreement, he agreed to waive a jury trial on a prior strike allegation, which was based on a 2011 conviction in Pennsylvania for witness intimidation. At a subsequent court trial on the strike allegation, the trial court determined the Pennsylvania conviction constituted a serious felony under Penal Code section 1192.7, subdivision (c)(37), the intimidation of victims or witnesses in violation of section 136.1. The court therefore found the strike true, and sentenced defendant to 16 months in prison, doubled to 32 months based on the strike.
Undesignated statutory references are to the Penal Code.
Defendant appeals contending the true finding on the strike prior allegation must be reversed because the court erred in determining the Pennsylvania conviction for intimidation of a witness or victim constitutes a prior strike under California law based on sections 136.1 and 1192.7, subdivision (c)(37). He argues the elements of the Pennsylvania statute do not match those of section 136.1 as the same act and intent that constitutes a felony in Pennsylvania is misdemeanor witness dissuasion in California under section 137, subdivision (c). Citing Descamps v. United States (2013) 570 U.S. 254 (Descamps) and Mathis v. United States (2016) 579 U.S. ___ (Mathis), defendant further contends the court improperly examined the record of conviction in determining the Pennsylvania offense qualified as a strike.
During the pendency of this appeal, our Supreme Court decided People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo), which considered the effect of Descamps and Mathis on the role of judicial factfinding in determining whether a prior felony qualifies as a serious felony. In light of Gallardo, we conclude that the trial court erred in finding the Pennsylvania offense constituted a strike under California law. Not only are the elements of the Pennsylvania offense broader than the elements of section 136.1, but also the facts defendant admitted in rendering his guilty plea in the Pennsylvania matter do not necessarily violate section 136.1. We therefore reverse the true finding on the alleged strike. We shall vacate defendant's sentence and remand for resentencing consistent with the plea agreement.
FACTS AND PROCEEDINGS
On November 1, 2014, the victim drove to the Thunder Valley Casino in Placer County and left her car with the valet. She dropped the valet ticket she was given to retrieve her car. Defendant picked up the ticket, claimed the car, and then drove off without the victim's permission.
These facts are based on Rocklin Police Report No. 15090007, which the parties stipulated to as the factual basis for defendant's plea.
In May 2015, a felony complaint charged defendant with unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a), count one), and being an unlicensed driver (Veh. Code, § 12500, subd. (a), count two). As for count one, the complaint alleged that defendant had suffered a prior serious or violent felony conviction within the meaning of the three strikes law. (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i).) The prior strike allegation was based on a conviction defendant suffered in 2011 in Pennsylvania for the intimidation of witnesses or victims. (18 Pa.Cons.Stat. § 4952(a)(2); hereinafter Section 4952(a)(2).) It was also alleged that he committed the offense while released on bail or his own recognizance in another case. (§ 12022.1.)
Defendant waived a preliminary hearing, and the complaint was deemed an information. Defendant was held to answer on count one.
In July 2015, defendant pleaded no contest to count one, reserving a court trial on the strike allegation. Under the terms of the plea bargain, defendant agreed to plead to count one and waive a jury trial on the prior strike allegation in exchange for a maximum prison sentence of the low term (up to 16 months if the strike prior was found not true; up to 32 months if found true), and the other pending cases against him would be dismissed. As agreed, upon entry of the no contest plea, the court dismissed the balance of the charges pending against defendant, and set a court trial on the strike prior.
At the subsequent court trial on the prior strike allegation, the parties stipulated to the admission of the police criminal complaint, the information, and the guilty plea colloquy in the Pennsylvania matter. Defendant also stipulated that he was the person identified in the documents.
The information shows defendant was charged with, among other things, intimidation of witnesses or victims in violation Section 4952(a)(2). The information alleged defendant "did with the intent to or with the knowledge that his conduct would obstruct, impede, impair, prevent or interfere with the administration of criminal justice, intimidate or attempt to intimidate any witness or victim to: [¶] (a)(2) Give any false or misleading information or testimony relating to the commission of any crime to any law enforcement officer, prosecuting official or judge." Defendant pleaded guilty to the charge.
The guilty plea colloquy form includes a handwritten description of the "Elements" of Section 4952(a)(2) that states, "with intent to prevent or impede criminal prosecution, one attempts to cause or causes a witness to a crime to give false or misleading information." Page two of the plea colloquy form states, "In support of his plea, the defendant admits that the following facts did occur." Immediately after this text is a handwritten notation that defendant signed and initialed stating, "I did remove property belonging to [the victims] from our home at Devon Rd., Chester County. I did try to get [S.P.] to tell the police it was a mistake by threatening to tell her boss and others that she was a dishonest person." Defendant later initialed the statement: "I acknowledge that the facts occurred as set forth on page 2 of this form."
The prosecutor argued that in order to show a violation of section 136.1 for purposes of the strike, he would have to show that "defendant maliciously tried to prevent or discourage or did prevent or discourage the victim from cooperating or providing information so that a complaint, indictment, information, probation violation, et cetera, could be sought and prosecuted; and the defendant knew that he was trying to prevent or dissuade a person from doing so." According to the prosecutor, the plea colloquy showed that "defendant's intent when he communicated with[S.P.] was to prevent her from giving information that would have led to prosecution or to change her information that would have led to prosecution and did so by threatening to tell her coworkers or her boss that she was dishonest person."
Defense counsel argued that the elements of the two statutes did not match. In other words, "[i]t [wa]s possible to violate the Pennsylvania statute in such a way that it would not violate the . . . California statute because the Pennsylvania statute is essentially broader."
After examining the documents for the Pennsylvania judicial proceedings and considering the arguments of counsel, the trial court determined defendant's Pennsylvania conviction for witness intimidation satisfied the elements of witness intimidation under California law. (§ 136.1.) The court therefore found the strike allegation true beyond a reasonable doubt.
The court sentenced defendant to the low term of 16 months in state prison, doubled to 32 months given the prior strike enhancement. Defendant timely appealed.
DISCUSSION
Citing Descamps, supra, 186 L.Ed.2d 438 and Mathis, supra, 195 L.Ed.2d 604, defendant contends the court erred in concluding his Pennsylvania conviction was a serious felony. He argues that under those cases the court could do no more than compare the legal elements of witness intimidation in Section 4952(a)(2) under Pennsylvania law to the legal elements of witness intimidation in section 136.1 under California law; the court could not consider the facts underlying his prior Pennsylvania conviction in determining whether it constitutes a strike under California's recidivist sentencing scheme. In his view, the elements of the two statutes do not match. But even if the court could examine the record of conviction of his Pennsylvania offense, he argues that the underlying facts do not necessarily establish a strike under California law.
The People concede that the elements of witness intimidation under Section 4952(a)(2) do not correspond to the elements of section 136.1, thus defendant's prior Pennsylvania conviction does not necessarily establish a strike under California law. The People further concede that the conduct defendant admitted in the Pennsylvania plea colloquy is not the same conduct proscribed by section 136.1. In other words, even if the court could consider the facts underlying a prior conviction when determining whether that conviction constitutes a strike — something defendant disputes — defendant's underlying conduct does not necessarily establish he committed a strike offense.
After comparing the elements of the Pennsylvania statute and the California statute, we agree with the parties that the statutory elements do not match. And although under Gallardo the trial court was permitted to identify those facts that defendant admitted as the factual basis for his guilty plea (Gallardo, supra, 4 Cal.5th at p. 136), we agree with the parties that the written plea colloquy in which defendant admitted he "tr[ied] to get [the victim] to tell the police it [(the removal of property from a home)] was a mistake by threatening to tell her boss and others that she was a dishonest person" does not necessarily establish a violation of section 136.1. We therefore reverse the sentence and remand for resentencing.
Under California's three strikes law, a defendant's sentence is enhanced upon proof that the defendant has been previously convicted of a "strike" — a " 'violent felony' " as defined in section 667.5, subdivision (c), or a " 'serious felony' " as defined in section 1192.7, subdivision (c). (§§ 667, subd. (f)(1), 1170.12, subd. (d)(1).) " ' "In order for a prior conviction from another jurisdiction to qualify as a strike under the Three Strikes law, it must involve the same conduct as would qualify as a strike in California" ' [citation], and the statutory elements of the foreign crime must include all the elements of the California strike offense." (People v. Denard (2015) 242 Cal.App.4th 1012, 1024 (Denard); §§ 667.5, subd. (f)(1), 1170.12, subd. (d)(1).)
Section 1192.7, subdivision (c)(37) lists the intimidation of victims or witnesses in violation of section 136.1 as a serious felony. (§ 1192.7, subd. (c)(37).) Section 136.1, subdivision (a), in turn, provides: "[A]ny person who does any of the following is guilty of a public offense . . . : [¶] (1) Knowingly and maliciously prevents or dissuades any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law. [¶] (2) Knowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law." (§ 136.1, subd. (a).) Subdivision (b) of section 136.1 provides in relevant part that "every person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense . . . [¶] (1) Making any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge. [¶] (2) Causing a complaint, indictment, information, probation or parole violation to be sought and prosecuted, and assisting in the prosecution thereof. [¶] (3) Arresting or causing or seeking the arrest of any person in connection with that victimization." (§ 136.1, subd. (b).)
Prior to Gallardo, supra, 4 Cal.5th 120, it had long been established in California that a sentencing court could make a strike or serious felony determination based on a defendant's entire record of conviction. (People v. Guerrero (1988) 44 Cal.3d 343, 355.) Where the alleged strike prior rested on a plea of guilty or no contest, the court could examine the record of conviction to determine whether the crime "realistically may have been based on conduct" that qualified as a strike and serious felony under California law. (People v. McGee (2006) 38 Cal.4th 682, 706 (McGee), disapproved by Gallardo, supra, 4 Cal.5th at pp. 134-136.)
McGee held that a defendant has no federal constitutional right to a jury determination as to whether a prior conviction qualifies as a serious felony. (McGee, supra, 38 Cal.4th at pp. 708-709.) Rather, whether the nature of the prior conviction met the requirements for a strike was a matter to be determined by the trial court, even when the trial court was required to determine facts underlying the conviction. (Ibid. [no Sixth Amendment right to a jury trial regarding whether a Nevada robbery conviction qualifies as a strike conviction where the elements of robbery in Nevada were different than in California, but defendant's conduct as reflected in the record of conviction was conduct that would constitute a serious felony under California law].)
The McGee court recognized, however, that the United States Supreme Court was yet to weigh in on this issue. The court wrote: "Unless and until the high court directs otherwise, we shall assume that the precedents from that court and ours support a conclusion that sentencing proceedings such as those conducted below do not violate a defendant's constitutional right to a jury trial. Although we recognize the possibility that the high court may extend the scope of the Apprendi decision . . . , we are reluctant, in the absence of a more definitive ruling on this point by the United States Supreme Court, to overturn the current California statutory provisions and judicial precedent that assign to the trial court the role of examining the record of a prior criminal proceeding to determine whether the ensuing conviction constitutes a qualifying prior conviction under the applicable California sentencing statute. . . . [W]e are not prepared to assume that the high court will interpret the federal constitutional right to a jury trial as requiring a state to assign this function to a jury." (McGee, supra, 38 Cal.4th at p. 686.)
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), the Supreme Court found that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."
The United State Supreme Court has since spoken on the matter in Descamps and Mathis, the cases upon which defendant relies. In Descamps, the Supreme Court held that courts may not consider any documents beyond those that reveal the elements of a crime to determine whether a prior conviction for violating an " 'indivisible' statute--i.e., one not containing alternative elements . . . ." qualifies as a violent felony under the Armed Career Criminal Act of 1984 (18 U.S.C. § 924(e); hereinafter ACCA), a sentence-enhancing statute. (Descamps, supra, 186 L.Ed.2d at pp. 449-450.) Under this " 'categorical approach,' " sentencing courts can " 'look only to the statutory definitions'--i.e., the elements--of a defendant's prior offenses and not 'to the particular facts underlying those convictions.' [Citation.]" (Id. at p. 451.) If the relevant criminal statute shared the same elements, or was narrower than, the "generic" ACCA crime, the prior conviction could serve as a predicate, "[b]ut if the statute swe[pt] more broadly than the generic crime, a conviction under that law [could not] count as an ACCA predicate, even if the defendant actually committed the offense in its generic form." (Ibid.)
Where the prior conviction was predicated on a "divisible" statute in which the elements of the offense were listed in the alternative such that one alternative formed the basis of an ACCA predicate while another did not, trial courts could determine which set of elements formed the basis of the conviction by considering "a limited class of documents, such as indictments and jury instructions" in the record of conviction. (Descamps, supra, 186 L.Ed.2d at pp. 449, 451-452.) This "modified categorical approach," as it was known, was not an exception to the categorical approach but rather a tool that "retain[ed] the categorical approach's central feature: a focus on the elements, rather than the facts, of a crime." (Id. at p. 453)
The high court's rationale for the categorical approach was based partly on "Sixth Amendment concerns that would arise from sentencing courts' making findings of fact that properly belong to juries." (Descamps, supra, 186 L.Ed.2d at p. 455.) The Supreme Court's holding, which derived from principles previously articulated in Apprendi, applied to convictions obtained after pleas as well as trials: "[W]hen a defendant pleads guilty to a crime, he waives his right to a jury determination of only that offense's elements; whatever he says, or fails to say, about superfluous facts cannot license a later sentencing court to impose extra punishment." (Descamps, at p. 456.) Thus, under Descamps, a sentencing court may not "rely on its own finding about a non-elemental fact to increase a defendant's maximum sentence." (Ibid.)
In Mathis, the high court stated that the modified categorical approach applies where the statute defining the prior offense lists "multiple elements disjunctively," but the categorical approach applies where the statute "enumerates various factual means of committing a single element." (Mathis, supra, 195 L.Ed.2d at p. 611.) In describing the categorical approach, the court held that "a judge cannot go beyond identifying the crime of conviction to explore the manner in which the defendant committed that offense." (Id. at p. 615.)
Our Supreme Court, in Gallardo, recently reconsidered McGee in light of Descamps and Mathis. (Gallardo, supra, 4 Cal.5th at p. 124.) Although the holdings of Descamps and Mathis both concerned "the proper interpretation of a federal statute not at issue [in Gallardo], their discussions of background Sixth Amendment principles pointedly reveal[ed] the limits of a judge's authority to make the findings necessary to characterize a prior conviction as a serious felony." (Gallardo, at p. 124.)
Gallardo overturned McGee. (Gallardo, supra, 4 Cal.4th at p. 136.) The court held 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." (Ibid.) That inquiry, the court recognized, "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.' (Descamps, supra, at p. ___ .)" (Ibid.) "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." (Ibid., fn. omitted.)
Focusing first on the elements of the statutes at issue, it is apparent that the elements of the Pennsylvania statute do not match the elements of the California statute. (Descamps, supra, 186 L.Ed.2d at p. 451; Mathis, supra, 195 L.Ed.2d at p. 613; Gallardo, supra, 4 Cal.5th at p. 136 [trial court must identify "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"].) To violate Section 4952(a)(2), the prosecution must prove: (1) the defendant intimidated or attempted to intimidate a witness or victim into giving false or misleading information or testimony relating to the commission of a crime to a law enforcement officer, prosecuting official, or judge, and (2) the defendant did so with the intent to, or with the knowledge that his conduct would obstruct, impede, impair, prevent or interfere with the administration of criminal justice. (18 Pa.C.S.A. § 4952, subd. (a)(2); Pa. SSJI (Crim), § 15.4952 (May 2016) [Pennsylvania Suggested Standard Criminal Jury Instructions].)
Given our conclusion that the elements of the statutes do not match, we need not consider defendant's contention that the availability or unavailability of certain affirmative defenses in a given jurisdiction is also a relevant inquiry. --------
According to one court, section 136.1 "defines a family of 20 related offenses." (People v. Torres (2011) 198 Cal.App.4th 1131, 1137, fn. omitted (Torres).) "Subdivision (a)(1) proscribes knowingly and maliciously preventing or dissuading any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law, and subdivision (a)(2) proscribes attempting to do so." (Id. at p. 1138, fn. omitted; § 136.1, subds. (a)(1) & (a)(2).)
Subdivision (b) of section 136.1 proscribes attempting to prevent or dissuade a crime victim or witness from doing any of the following: reporting the victimization to anyone in law enforcement, including a law enforcement officer, a peace officer, probation, parole, or correctional officer, a prosecuting attorney, or a judge (§ 136.1, subd. (b)(1)); causing a complaint, indictment, information, probation or parole violation to be prosecuted and assisting in the prosecution (§ 136.1, subd. (b)(2)); or seeking or causing the arrest or arresting a person in connection with "that victimization." (§ 136.1, subd. (b)(3); Torres, supra, 198 Cal.App.4th at p. 1138.)
"Unlike the subdivision (a) offenses, the subdivision (b) offenses do not expressly include the mental element of knowingly and maliciously." (Torres, supra, 198 Cal.App.4th at p. 1138; People v. McElroy (2005) 126 Cal.App.4th 874, 881 ["Section 136.1, subdivision (b)(1) . . . does not require that [a] defendant act knowingly and maliciously"].) Subdivision (c), however, provides that every person doing any of the acts described in subdivision (a) or (b) knowingly and maliciously under certain circumstances, such as where the act is accompanied by force or an express or implied threat of force or violence (§ 136.1, subd. (c)(1)) or where the act is in furtherance of a conspiracy (§ 136.1, subd. (c)(2)), is guilty of a felony. (§ 136.1, subd. (c).) According to CALCRIM No. 2622, the standard jury instruction for section 136.1, "[a] person acts maliciously when he or she unlawfully intends to annoy, harm, or injure someone else in any way, or intends to interfere in any way with the orderly administration of justice."
On its face, section 136.1 prohibits efforts to prevent a witness or victim from testifying or from making a report or from causing a complaint to be filed or an arrest to be made. (§ 136.1, subds. (a)-(b).) The elements of the statute, however, do not necessarily cover attempts to encourage a witness or victim to affirmatively give false or misleading information to a law enforcement officer like Section 4952(a)(2). (See, e.g., People v. Womack (1995) 40 Cal.App.4th 926, 931 ["[p]reventing or dissuading a witness from testifying altogether is incompatible with influencing or shaping the testimony the witness gives"]; People v. Fernandez (2003) 106 Cal.App.4th 943, 945-946, 951 [§ 136.1 conviction reversed where evidence showed the defendant tried to convince a witness to lie at the preliminary hearing on charges of grand theft and forgery, but not that he tried to prevent the witness from testifying at the hearing].)
That prohibition, as defendant points out, is contained in section 137. Section 137 provides in relevant part, "[e]very person who knowingly induces another person to give false testimony or withhold true testimony not privileged by law or to give false material information pertaining to a crime to, or to withhold true material information pertaining to a crime from, a law enforcement official is guilty of a misdemeanor." (§ 137, subd. (c); see also Womack, supra, 40 Cal.App.4th at p. 930 ["[t]he entire sense of Penal Code section 137 is that testimony will be given, but the perpetrator will attempt to influence the testimony given"].)
Furthermore, while the trial court also could consider the facts defendant admitted as the factual basis for his guilty plea in the Pennsylvania matter (Gallardo, supra, 4 Cal.5th at p. 136), the record shows that those facts do not establish that his conduct necessarily violated section 136.1. The People concede as much, noting that defendant's conduct of encouraging the victim to do an affirmative act--give a false police report--is not the same as dissuading a victim from reporting any crime at all.
Because the elements of Section 4952(a)(2) do not match section 136.1, with the broader Pennsylvania statute encompassing conduct that is not necessarily covered under section 136.1, and since the facts defendant admitted as part of his Pennsylvania guilty plea do not necessarily violate section 136.1, the court erred in finding the strike allegation true. Defendant's enhanced sentence based on the strike must therefore be reversed.
DISPOSITION
Defendant's unlawfully driving or taking a vehicle conviction is affirmed. The trial court's true finding on the strike allegation is reversed. Defendant's sentence is vacated and the matter is remanded for resentencing consistent with this opinion.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Hull, J. /s/_________
Mauro, J.