Opinion
H045505
04-14-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVION SMITH, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS161898A)
I. INTRODUCTION
Defendant Davion Smith appeals after he was found guilty by jury of involuntary manslaughter (Pen. Code, § 192, subd. (b)), battery with serious bodily injury (§ 243, subd. (d)), assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)), and intimidating a witness (§ 136.1, subd. (b)(1).) The jury found true the allegations that defendant personally inflicted great bodily injury during the commission of the assault (§ 12022.7, subd. (a)), had suffered a prior serious or violent felony juvenile adjudication (§ 1170.12, subd. (c)(1)), and had served a prior prison term (§ 667.5, subd. (b)). The trial court found true the allegation that defendant committed the offense of intimidating a witness while he was released on bail (§ 12022.1) (on bail enhancement). The trial court sentenced defendant to an aggregate term of 18 years.
All further statutory references are to the Penal Code unless otherwise specified.
Defendant's contentions on appeal pertain solely to various sentence enhancements. First, defendant contends that his counsel was constitutionally ineffective for failing to object to a detective's testimony identifying defendant as the person depicted in booking photographs introduced into evidence during the bifurcated trial on the strike prior and prior prison term. Second, defendant contends that the use of his juvenile adjudication to enhance his sentence under the "Three Strikes" law was unconstitutional and the record lacks substantial evidence that he was age 16 or older when he committed the juvenile offense, as statutorily required for an adjudication to constitute a strike. Third, defendant contends the trial court's finding that defendant was released on bail when he committed the offense of intimidating a witness is not supported by substantial evidence and the trial court improperly imposed punishment on the enhancement. Fourth, defendant contends that the prior prison term enhancement must be stricken based on recent legislation.
For reasons that we will explain, we will reverse the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
Because the facts underlying defendant's convictions are not at issue, our brief summary of the facts is drawn from the probation report filed on February 2, 2018. We summarize the evidence in support of the prior strike and on bail findings in our discussion of those issues.
On August 25, 2015, defendant confronted Tyler Webb, who allegedly owed him money. Defendant asked Webb, " 'Where's my money, man?' " Defendant punched Webb, and Webb fell and hit his head on the cement, causing brain damage.
Someone reported a man lying in the street in the area of " 'Chinatown,' " a homeless encampment in Salinas. Webb was found nonresponsive inside a tent and was transported to a local hospital where he died.
Defendant was arrested on August 31, 2015. During a police interview, defendant denied being involved in an altercation with Webb or that Webb owed him money.
On February 25, 2016, a witness reported that he had been pressured by defendant's father not to cooperate with the police investigation. After defendant was released from jail, defendant approached the witness several times, encouraging him to change his story. Defendant's brother also contacted associates of the witness to discourage the witness from testifying. The witness became concerned for his safety and worried that defendant might try to kill him.
B. Charges , Verdicts , and Sentence
Defendant was charged with involuntary manslaughter (§ 192, subd. (b); count 1), battery with serious bodily injury (§ 243, subd. (d); count 2), assault by means likely to produce great bodily injury (§ 245, subd. (a)(4); count 3), and dissuading a witness (§ 136.1, subd. (b)(1); count 4). It was also alleged that defendant personally inflicted great bodily injury during the commission of count 3 (§ 12022.7, subd. (a)) and that he was on bail when he committed count 4 (§ 12022.1, subd. (b)). Finally, it was alleged that defendant had suffered a prior serious or violent felony juvenile adjudication (§ 1170.12, subd. (c)(1)) and had served a prior prison term (§ 667.5, subd. (b)).
A jury found defendant guilty of all counts and found true the allegation that defendant personally inflicted great bodily injury during the commission of count 3. In a bifurcated trial, the jury found the prior strike and prior prison term allegations true. The trial court found true the allegation that defendant had committed count 4 while on bail.
After denying defendant's motion to strike the prior strike finding, the trial court sentenced defendant to an aggregate term of 18 years as follows: the court imposed the upper term of four years on count 3, doubled to eight years based on defendant's prior strike, plus a consecutive three-year term for the great bodily injury enhancement; a consecutive two-year term on count 4, doubled to four years based on defendant's strike, plus a consecutive two-year term for the on bail enhancement; and a consecutive one-year term for defendant's prior prison term enhancement. Pursuant to section 654, the court imposed and stayed terms of four years each, doubled to eight years each based on defendant's strike, on counts 1 and 2.
III. DISCUSSION
A. Counsel's Failure to Object to Testimony Identifying Defendant in Booking Photographs
During the bifurcated trial on the prior strike and prior prison term allegations, the prosecution introduced 2011 and 2013 booking photographs into evidence. Defendant contends that his counsel was constitutionally deficient for failing to object to Detective Cameron Murphy's testimony that he knew defendant was the person depicted in the photographs. The Attorney General asserts that the claim must be rejected because defendant cannot establish that he was prejudiced by counsel's failure to object to the testimony.
1. Trial Court Proceedings
Defendant was tried by jury in a bifurcated trial on the allegations that he had suffered a prior serious or violent felony juvenile adjudication and had served a prior prison term. After moving a number of certified records into evidence, the prosecution called one witness, Detective Murphy.
Detective Murphy identified defendant and testified that he was familiar with defendant because "[t]hrough this process of investigation, [he] met with him on several occasions." The prosecution presented Detective Murphy with an April 7, 2011 booking photograph. When asked if he knew the person in the booking photograph, Detective Murphy responded, "Yes. That's Mr. Davion Smith." The prosecution next handed Detective Murphy a July 3, 2013 booking photograph. When asked whether he knew the person in that photograph, Detective Murphy answered, "Yes. That is Mr. Davion Smith." Defendant did not object to either question or move to strike Detective Murphy's responses.
On cross-examination, defense counsel asked Detective Murphy whether he was familiar with defendant in 2011. Detective Murphy stated that he "may have seen him before in that time," but he "did not have a personal relationship or . . . recall contacting him in person." Defense counsel inquired whether Detective Murphy was familiar with defendant's "photographs [sic] . . . in 2011." Detective Murphy responded that he had not seen "that photograph from 2011 at that time." He also stated that he had not had daily contact with defendant and that the most contact he had experienced with defendant occurred after the end of August 2015.
The prosecution rested, and defendant did not present any evidence.
When instructing the jury, the trial court read CALCRIM No. 3101, informing the jury that "[t]he People have alleged that the defendant was previously convicted or adjudicated of another crime. It has already been determined that the defendant is the person named in [the prior conviction records,] Exhibit[s] 79 through 84."
2. Analysis
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish both that his or her counsel's performance was deficient and that he or she suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The deficient performance component of an ineffective assistance of counsel claim requires a showing that "counsel's representation fell below an objective standard of reasonableness" under prevailing professional norms. (Id. at p. 688.) Regarding prejudice, a "defendant must show that there is a reasonable probability"—meaning "a probability sufficient to undermine confidence in the outcome"—"that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.) Prejudice requires a showing of "a ' "demonstrable reality," not simply speculation.' " (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." (Strickland, supra, at p. 697.)
Defendant contends that his counsel was constitutionally deficient for failing to object to Detective Murphy's testimony identifying defendant as the individual depicted in the 2011 and 2013 booking photographs. Defendant argues that the testimony was impermissible because there was no evidence that Detective Murphy was familiar with defendant's appearance in 2011 and 2013 and because the testimony constituted impermissible lay opinion. Defendant asserts that he was prejudiced by the testimony because "[h]ad counsel made the required objection, it is reasonably probable the court would have excluded Detective Murphy's testimony, because it did not meet the required predicates for admissibility. And because the prosecution relied so heavily on Murphy's identification to prove the alleged prior adjudication and conviction, it is reasonably probable that without his testimony, at least one juror would have had a reasonable doubt that [defendant] appellant had suffered the alleged prior adjudication and/or conviction." We are not persuaded.
"The right, if any, to a jury trial of prior conviction allegations derives from sections 1025 and 1158, not from the state or federal Constitution." (People v. Epps (2001) 25 Cal.4th 19, 23 (Epps).) Importantly, "subdivision (c) of section 1025 gives the question of identity to the court[;] the question whether the alleged prior conviction ever occurred, when legitimately at issue, remains for jury determination under subdivision (b)." (Id. at p. 25.) "It might be a rare case in which the question of authenticity, accuracy, or sufficiency of prior conviction records is seriously at issue . . . . Nevertheless, in an appropriate case, the defendant has a right under Penal Code sections 1025 and 1158 to a jury trial of those issues." (Id. at p. 27.)
As relevant here, section 1025 states: "(b) Except as provided in subdivision (c), the question of whether or not the defendant has suffered the prior conviction shall be tried by the jury that tries the issue upon the plea of not guilty, or in the case of a plea of guilty or nolo contendere, by a jury impaneled for that purpose, or by the court if a jury is waived. [¶] (c) Notwithstanding the provisions of subdivision (b), the question of whether the defendant is the person who has suffered the prior conviction shall be tried by the court without a jury."
As relevant here, section 1158 provides: "Whenever the fact of a previous conviction of another offense is charged in an accusatory pleading, and the defendant is found guilty of the offense with which he is charged, the jury, or the judge if a jury trial is waived, must unless the answer of the defendant admits such previous conviction, find whether or not he has suffered such previous conviction."
Here, the trial court implicitly determined that defendant was the person named in the adjudication and conviction records and instructed the jury that it had "already been determined that the defendant is the person named in Exhibit[s] 79 through 84." Thus, in accordance with section 1025, subdivision (c), the issue of identity was not before the jury in the bifurcated trial on the prior strike adjudication and prior prison term allegations, and defendant has not demonstrated "a reasonable probability that. . . the result of the proceeding would have been different" had counsel objected to Detective Murphy's testimony. (Strickland, supra, 466 U.S. at p. 694.) Defendant has therefore failed to establish he was prejudiced by his counsel's performance. (See ibid.)
Accordingly, we must reject defendant's ineffective assistance of counsel claim. (See Strickland, supra, 466 U.S. at pp. 687, 697.)
B. The Use of Defendant's Juvenile Adjudication as a Strike Prior
Defendant raises several claims regarding the use of his juvenile adjudication as a strike prior. Defendant contends that its use violated his Sixth and Fourteenth Amendment rights to a jury trial and proof beyond a reasonable doubt because he did not have the right to a jury trial in the juvenile proceeding. Defendant also contends the record lacks substantial evidence that he was age 16 or older when he committed the juvenile offense, as required for the adjudication to constitute a strike (§§ 667, subd. (d)(3), 1170.12, subd. (b)(3)), and that even if the record contains such evidence, the use of the adjudication violated his Sixth and Fourteenth Amendment rights to a trial and due process because defendant's age was not found by a prior jury, nor did he admit it. Lastly, defendant contends that the use of the juvenile adjudication violated his Fourteenth Amendment right to due process because it contravened the state's promise that the juvenile system's primary purpose is to provide care, treatment, and guidance with the goal of rehabilitation.
We determine that the record does not contain substantial evidence that defendant was 16 years old when he committed the juvenile offense, but reject defendant's remaining claims.
1. Trial Court Proceedings
Pursuant to section 1170.12, subdivision (c), the prosecution alleged that defendant suffered a prior strike adjudication for armed robbery (§§ 212.5, 12022.5) on or about August 9, 1989.
At the bifurcated trial on the prior strike and prison term allegations, the prosecution moved into evidence certified copies of records from juvenile proceedings in 1989. The records included a minute order from a contested jurisdictional hearing on July 14, 1989, and a minute order from a disposition hearing on August 9, 1989.
The jurisdictional minute order was issued by the San Joaquin County Juvenile Court. The minute order reflects that a Welfare and Institutions Code section 602 petition dated June 20, 1989, alleged that defendant violated sections 212.5 and 12022.5 (count 1); sections 211 and 12022, subdivision (a) (count 2); and Vehicle Code section 10851 (count 3). The minute order lists defendant's age as 16 but does not state defendant's date of birth or the date of the offenses. The minute order reflects that the juvenile court sustained the allegations in count 1, dismissed count 2 at the prosecution's request, and dismissed count 3 after finding it not true. The court ordered the petition and all proceedings transferred to Monterey County for disposition, and defendant was ordered detained in the Juvenile Justice Center pending transfer.
The Monterey County Juvenile Court disposition minute order states that defendant was continued as a ward of the court and was committed to the Youth Authority for a period not to exceed 7 years 8 months for violating sections 212.5 and 12022.5, Health and Safety Code section 11350, and section 664 and Vehicle Code section 10851. The order states, "Court finds is [sic] a 707(b) WI offense."
At the conclusion of the bifurcated trial, the jury found the prior strike allegation true. At sentencing, the trial court doubled the imposed terms pursuant to the Three Strikes law, implicitly determining that defendant's adjudication qualified as a prior strike.
2. Legal Principles
The Three Strikes law "prescribes increased punishment for a person who is convicted of a felony after sustaining one or more qualifying prior felony convictions or juvenile adjudications, which are commonly known as strikes." (People v. Barragan (2004) 32 Cal.4th 236, 239.) A prior juvenile adjudication constitutes a strike if the following conditions are met: "(A) The juvenile was 16 years of age or older at the time he or she committed the prior offense. (B) The prior offense is listed in subdivision (b) of Section 707 of the Welfare and Institutions Code or described in paragraph (1) or (2) as a serious or violent felony. (C) The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law. (D) The juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code." (§ 667, subd. (d)(3); see also § 1170.12, subd. (b)(3).) "A qualifying juvenile adjudication must be pleaded and proved beyond a reasonable doubt [citations], and the defendant has a statutory right to jury trial on the issue of whether he or she suffered the prior adjudication [citations]." (People v. Smith (2003) 110 Cal.App.4th 1072, 1079.)
In People v. Nguyen (2009) 46 Cal.4th 1007, 1010 (Nguyen), the California Supreme Court addressed whether the federal Constitution allows the use of a juvenile adjudication as a prior strike even though there is no right to a jury trial in the juvenile proceeding. "A series of United States Supreme Court decisions, beginning with Apprendi v. New Jersey (2000) 530 U.S. 466 [(Apprendi)], establishes an adult criminal defendant's general right . . . to a jury finding beyond reasonable doubt of any fact used to increase the sentence for a felony conviction beyond the maximum term permitted by conviction of the charged offense alone." (Nguyen, supra, at p. 1010.) However, the United States Supreme Court excepted from Apprendi's general rule "the fact of a prior conviction," which may properly be determined by the sentencing court. (Apprendi, supra, at p. 490.) Thus, the California Supreme Court held in Nguyen that "Apprendi does not bar the use of a constitutionally valid, fair, and reliable prior adjudication of criminal conduct to enhance a subsequent adult sentence simply because the prior proceeding did not include the right to a jury trial." (Nguyen, supra, at p. 1025.) "[T]he absence of a constitutional or statutory right to jury trial under the juvenile law does not, under Apprendi, preclude the use of a prior juvenile adjudication of criminal misconduct to enhance the maximum sentence for a subsequent adult felony offense by the same person." (Nguyen, supra, at p. 1028.)
More recently, in People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo), the California Supreme Court held that "[u]nder the Sixth Amendment to the United States Constitution, as interpreted in Apprendi . . . , any fact, other than the fact of a prior conviction, that increases the statutorily authorized penalty for a crime must be found by a jury beyond a reasonable doubt." (Gallardo, supra, at p. 123.) " 'The Sixth Amendment contemplates that a jury—not a sentencing court—will find' the facts giving rise to a conviction, when those facts lead to the imposition of additional punishment under a recidivist sentencing scheme. [Citation.] This means that a sentencing court may identify those facts it is 'sure the jury . . . found' in rendering its guilty verdict, or those facts as to which the defendant waived the right of jury trial in entering a guilty plea. [Citation.] But it may not 'rely on its own finding' about the defendant's underlying conduct 'to increase a defendant's maximum sentence.' " (Gallardo, supra, at p. 134.)
The defendant in Gallardo waived her right to a jury trial regarding an allegation that she suffered a prior assault conviction, but she disputed that the assault qualified as a strike based on the fact that her plea in the prior case did not definitively establish what type of assault she committed. (Gallardo, supra, 4 Cal.5th at p. 126.) If the defendant "committed assault with a deadly weapon, the prior conviction counted as a strike; if she committed assault by any means of force likely to produce great bodily injury, it did not." (Id. at p. 125.) The trial court reviewed a transcript of the preliminary hearing in the prior case, determined that the defendant had committed assault with a deadly weapon, and sentenced her as a second strike offender. (Id. at p. 126.) The California Supreme Court granted review to determine whether using defendant's assault prior as a strike violated her rights under Apprendi.
The court concluded that the trial court "engaged in a form of factfinding that strayed beyond the bounds of the Sixth Amendment." (Gallardo, supra, 4 Cal.5th at p. 136.) The court explained that in determining whether a prior conviction qualifies as a strike, the trial court may consider only a limited class of documents that "might help identify what facts a jury necessarily found in the prior proceeding." (Id. at p. 137.) A preliminary hearing transcript is not within that class because "[a] sentencing court reviewing that preliminary transcript has no way of knowing whether a jury would have credited the victim's testimony had the case gone to trial." (Ibid.) Thus, the court reasoned, "at least in the absence of any pertinent admissions," the sentencing court cannot do anything but guess that a defendant who pleaded guilty to committing an assault in violation of section 245, subdivision (a)(1), was "acknowledging the truth of the testimony indicating that she committed that assault with a knife." (Gallardo, supra, at p. 137.)
Nonetheless, the court reaffirmed "that determinations about the nature of prior convictions are to be made by the [sentencing] court, rather than a jury, based on the record of conviction." (Gallardo, supra, 4 Cal.5th at p. 138; see People v. McGee (2006) 38 Cal.4th 682, 695 (McGee) ["there has been a clear expression of legislative intent that a jury play a very limited role in determining prior offense allegations and that a court, not a jury, examine records of prior convictions to determine whether the conviction alleged qualifies as a conviction under the applicable sentence-enhancement provision"], overruled on another point in Gallardo, supra, at p. 134.)
3. The Constitutionality of Enhancing Defendant's Sentence Based on His Juvenile Adjudication
Relying on the United States Supreme Court cases Descamps v. United States (2013) 570 U.S. 254 (Descamps) and Mathis v. United States (2016) 579 U.S. ___, (Mathis), as well as the California Supreme Court's decision in Gallardo, supra, 4 Cal.5th 120, defendant urges us to determine that Nguyen is no longer controlling authority, contending that the use of his juvenile adjudication as a strike prior violated his Sixth and Fourteenth Amendment rights to a jury trial and proof beyond a reasonable doubt because he had no right to a jury trial in the juvenile proceeding. We conclude otherwise.
In both Descamps and Mathis, the United States Supreme Court interpreted the federal Armed Career Criminal Act (18 U.S.C. § 924(e)) in light of the Sixth Amendment's limits on judicial factfinding recognized in Apprendi. Both cases involved the sentencing courts' determinations that the alleged prior convictions qualified as predicate offenses to enhance subsequent sentences under the Act. (Descamps, supra, 570 U.S. at p. 257; Mathis, supra, 136 S.Ct. at p. 2248.) The Supreme Court concluded that the sentencing courts were generally barred from looking beyond the statutory elements of the prior offenses to determine whether the defendants' conduct qualified for imposition of a sentence enhancement under the Act. (See Descamps, supra, at pp. 259, 268-269 [sentencing court impermissibly relied on plea colloquy to find defendant's prior conviction for burglary involved unlawful entry]; Mathis, supra, at p. 2250 [sentencing court impermissibly relied on records of prior conviction to determine that defendant had burglarized structures rather than vehicles].) Importantly, neither case involved the constitutional validity of using a prior juvenile adjudication to enhance a sentence when the offender did not have the right to a jury trial in the juvenile proceeding.
Nor did Gallardo. As we explained above, the Gallardo court limited the scope of permissible factfinding by a sentencing court in determining whether the defendant suffered a qualifying prior conviction. (Gallardo, supra, 4 Cal.5th at p. 134.) It did not overrule Nguyen's holding that a sentencing court may validly impose a sentence enhancement based on a defendant's prior juvenile adjudication despite the lack of a jury trial right in the juvenile proceeding. Thus, Nguyen remains controlling precedent regarding whether a juvenile adjudication can constitutionally qualify as a strike prior despite the lack of a jury trial right in the juvenile proceeding. We are bound by Nguyen. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Accordingly, pursuant to Nguyen, we determine that the use of defendant's prior juvenile adjudication as a strike to enhance defendant's sentence did not violate defendant's Sixth and Fourteenth Amendment rights to a jury trial and proof beyond a reasonable doubt. (See Nguyen, supra, 46 Cal.4th at p. 1025.)
4. The Trial Court's Implicit Finding That Defendant Was 16 at the Time of the Juvenile Offense
Defendant next contends that the record lacks substantial evidence that he was 16 or older when he committed the juvenile offense and that because his age at the time of the juvenile offense was not found by a prior jury and he did not admit to it in the juvenile proceedings, the use of the juvenile adjudication as a strike prior violated his constitutional rights.
"In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we 'examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant 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. [Citation.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1129 (Guerra), disapproved on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.)
As we stated above, a juvenile adjudication may qualify as a strike if "[t]he juvenile was 16 years of age or older at the time he or she committed the prior offense." (§§ 667, subd. (d)(3)(A), 1170.12, subd. (b)(3)(A).) In Gallardo, the California Supreme Court reaffirmed that determinations pertaining to the nature or basis of a prior conviction are made by the sentencing court. (Gallardo, supra, 4 Cal.5th at p. 138.) The statutory requirement that a juvenile offender be at least 16 years old at the time of the offense for the adjudication to constitute a strike pertains to the nature of the prior juvenile adjudication and is therefore a determination made by the sentencing court. (See McGee, supra, 38 Cal.4th at pp. 693-694, 706-707, 709.)
However, when determining whether a defendant is subject to increased punishment based on a prior conviction, the inquiry "is strictly limited to a review and interpretation of documents that are part of the record of the prior criminal proceeding." (McGee, supra, 38 Cal.4th at p. 685; see People v. Woodell (1998) 17 Cal.4th 448, 452 (Woodell) [" 'in determining the truth of a prior-conviction allegation, the trier of fact may look to the entire record of conviction' but . . . 'no further' "].) The "record of conviction" of the prior proceeding includes trial court documents and appellate court documents "at least up to finality of the judgment." (Woodell, supra, at p. 455.)
The juvenile court records admitted into evidence established the following facts: defendant was the subject of a June 20, 1989 juvenile wardship petition that identified him as Davion Smith, age 16. The petition alleged that defendant committed three offenses, including first degree armed robbery in violation of sections 212.5, subdivision (a), and 12022.5. On July 14, 1989, the juvenile court held a jurisdictional hearing on the petition where it found that defendant committed armed robbery. At the disposition hearing on August 9, 1989, the juvenile court found defendant had committed a Welfare and Institutions Code section 707, subdivision (b) offense, continued defendant as a ward of the court, and committed defendant to the Youth Authority for a period not to exceed 7 years 8 months.
The parties agree that the juvenile court's finding that defendant committed a Welfare and Institutions Code section 707, subdivision (b) offense is not substantial evidence that defendant was 16 years old when he committed the crime. (See In re Veronique P. (2004) 119 Cal.App.4th 195, 200.)
However, the juvenile court records did not provide defendant's date of birth or the date of the juvenile offense. The Attorney General argues that certified records from the California Department of Corrections and Rehabilitation (the section 969b packet) admitted into evidence during the bifurcated trial established that defendant's date of birth was March 23, 1973. While this is true, the section 969b packet was not part of the record of defendant's prior juvenile adjudication. Thus, it could not properly be used by the trial court to determine whether the adjudication qualified as a strike. (See McGee, supra, 38 Cal.4th at p. 685.)
Moreover, even if the trial court were empowered to rely on evidence outside the record of the juvenile adjudication, defendant's date of birth was not the only evidence needed to establish defendant was 16 years old at the time of the juvenile offense. Still lacking was evidence of the offense date. Without that evidence, even though evidence of defendant's date of birth demonstrated that defendant turned 16 years old on March 23, 1989, and was therefore 16 when the Welfare and Institutions Code section 602 petition was filed on June 20, 1989, it could not be established that defendant was 16 when he perpetrated the juvenile offense. Thus, we must conclude that the trial court's implicit finding that defendant was 16 years old when he committed the juvenile offense is not supported by substantial evidence. (See §§ 667, subd. (d)(3)(A), 1170.12, subd. (b)(3)(A); Guerra, supra, 37 Cal.4th at p. 1129.)
To the extent defendant claims that a sentencing court's determinations about the nature of a prior juvenile adjudication must be limited to facts found by a jury in the prior case, his claim necessarily fails under Nguyen's holding that a sentencing court may validly impose a sentence enhancement based on a defendant's prior juvenile adjudication despite the lack of a jury trial right in the juvenile proceeding. (Nguyen, supra, 46 Cal.4th at p. 1028.)
Accordingly, because there is not substantial evidence in the record to support the trial court's implicit finding that defendant was 16 years old when he committed the juvenile offense (see §§ 667, subd. (d)(3)(A), 1170.12, subd. (b)(3)(A); Guerra, supra, 37 Cal.4th at p. 1129), we will remand the matter for retrial on the prior strike allegation (see People v. Barragan (2004) 32 Cal.4th 236, 239, 241-242 [double jeopardy clause does not bar retrial of prior conviction allegation after appellate finding of evidentiary insufficiency]).
5. The Use of the Juvenile Adjudication to Increase Defendant's Punishment Did Not Violate Defendant's Fourteenth Amendment Rights
Defendant contends that the use of his juvenile adjudication to increase his punishment under the Three Strikes law contravened his Fourteenth Amendment rights "because it violated California's promise that the juvenile system's primary purpose is to provide 'care, treatment, and guidance' with the goal of rehabilitating the minor offender." (Bold omitted.) Defendant argues that the use of juvenile adjudications to enhance adult sentences ignores that the United States Supreme Court's determination that there is no right to a jury trial in juvenile proceedings was premised on the fact that juvenile proceedings are "remedial, not criminal."
However, as the California Supreme Court pointed out in Nguyen, "[t]he overwhelming majority of federal decisions and cases from other states have reached the . . . conclusion . . . that nonjury juvenile adjudications may be used to enhance later adult sentences" and "the United States Supreme Court has declined numerous opportunities to decide otherwise." (Nguyen, supra, 46 Cal.4th at p. 1021, fn. omitted.)
Moreover, the Three Strikes law's "unambiguous purpose is to provide greater punishment for recidivists." (People v. Davis (1997) 15 Cal.4th 1096, 1099.) The law does not punish juvenile offenders for the commission of the juvenile offense; it punishes adult recidivists. "Recidivism justifies the imposition of longer sentences for subsequent offenses." (People v. Cooper (1996) 43 Cal.App.4th 815, 825.)
For these reasons, we are not persuaded that the use of defendant's juvenile adjudication to increase his adult sentence violated "California's promise" regarding the purpose of the juvenile justice system or defendant's Fourteenth Amendment rights. (Bold omitted.)
In sum, because there is not sufficient evidence to establish defendant was 16 years old when he committed the juvenile offense, we remand the matter for retrial on the prior strike allegation.
C. On Bail Enhancement
Defendant raises two claims regarding the on bail enhancement (§ 12022.1). First, defendant contends the trial court's determination that defendant was on bail when he committed the offense of intimidating a witness is not supported by substantial evidence because there is no evidence in the record that defendant was released in case No. SS151404A when he committed the offense. Second, defendant contends the trial court erred when it imposed punishment for the on bail enhancement because section 12022.1, subdivision (d) requires the imposition of punishment to be stayed until the offender is sentenced on the primary offense and the record "lacks any evidence that when the court imposed sentence here, [defendant] had been sentenced in case number SS151404A." We conclude that neither contention has merit.
1. Trial Court Proceedings
The information alleged that on or about February 25, 2016, when defendant committed the offense of dissuading a witness from reporting a crime (count 4), defendant "was released from custody on bail or own recognizance in Case Number SS151404A within the meaning of . . . section 12022.1." (Some capitalization omitted.)
Detective Cameron Murphy testified that during his investigation into the death of Tyler Webb, he arrested defendant on August 31, 2015. Detective Murphy stated that defendant made bail in "the manslaughter case" on October 10, 2015, and that he arrested defendant for dissuading a witness on April 20, 2016.
The prosecution moved a certified bail receipt into evidence (People's exhibit No. 20). The certified bail receipt states that defendant was released on bond on October 10, 2015, in case No. SS151404A. The receipt lists the offense as "F PC 192(B)" and "INVOLUNTARY MANSLAUGHTER."
After the jury's verdicts were recorded and the jury was excused, the trial court considered the allegation that defendant committed count 4 while on bail. No additional evidence was offered and neither party made an argument regarding the allegation. The court stated: "The Court does find the enhancement pursuant to 12022.3 [sic], [the] out on bail enhancement, has been proven beyond a reasonable doubt. So the Court finds that to be true." Defendant did not object to the court's finding.
After the trial court imposed sentence on count 4, the court imposed a consecutive two-year term for the on bail enhancement. Defendant did not object.
2. Sufficiency of the Evidence Regarding Case No. SS151404A
Section 12022.1, subdivision (b) provides: "Any person arrested for a secondary offense that was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years, which shall be served consecutive to any other term imposed by the court." As relevant here, the statute defines " '[p]rimary offense' " as "a felony offense for which a person has been released from custody on bail or on his or her own recognizance prior to the judgment becoming final, including the disposition of any appeal, or for which release on bail or his or her own recognizance has been revoked." (§ 12022.1, subd. (a)(1).) A " '[s]econdary offense' " is "a felony offense alleged to have been committed while the person is released from custody for a primary offense." (§ 12022.1, subd. (a)(2).)
As we stated above, in determining a sufficiency of the evidence claim, we review the record to determine whether substantial evidence, " 'evidence that is reasonable, credible and of solid value,' " supports the trier of fact's findings, and "[w]e presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" (Guerra, supra, 37 Cal.4th at p. 1129.)
Defendant asserts that "[n]o document referenced case number SS151404A, let alone proved that [defendant] had been released on bail or his own recognizance from that case" and "[n]o testimony established those facts." The Attorney General counters that the prosecution proved defendant "committed a secondary offense (dissuading a witness) while he was released from custody on a primary offense (manslaughter)" and argues that "the case number isn't important." However, our review of People's exhibit No. 20, the certified bail receipt introduced into evidence during Detective Murphy's testimony, establishes that the exhibit specifically referenced case No. SS151404A. Neither party relies on the exhibit in their briefing to demonstrate that the record included evidence of case No. SS151404A.
We conclude there is substantial evidence in the record to support the trial court's finding that defendant was released on bail in case No. SS151404A when he committed count 4. Detective Cameron testified that he arrested defendant for manslaughter on August 31, 2015, and that defendant was released on bail on October 10, 2015. People's exhibit No. 20 established that defendant was released on bond in case No. SS151404 on October 10, 2015, and that the case involved the offense of involuntary manslaughter. Detective Cameron testified that he arrested defendant for dissuading a witness on April 20, 2016. From this evidence, the trial court could " 'reasonably deduce' " that defendant was released from custody on the primary offense of involuntary manslaughter in case No. SS151404A when he committed the secondary offense of dissuading a witness. (See Guerra, supra, 37 Cal.4th at p. 1129; § 12022.1, subd. (a)(1).)
We therefore reject defendant's claim that there is insufficient evidence to support the trial court's finding that defendant was released on bail in case No. SS151404A when he committed the offense of dissuading a witness.
3. Imposition of Punishment for the On Bail Enhancement
Defendant contends the trial court violated subdivision (d) of section 12022.1 when it imposed punishment for the on bail enhancement because the record "lacks any evidence that when the court imposed sentence . . . , [defendant] had been sentenced in case number SS151404A."
Subdivision (d) of section 12022.1 provides that "[w]henever there is a conviction for the secondary offense and the enhancement is proved, and the person is sentenced on the secondary offense prior to the conviction of the primary offense, the imposition of the enhancement shall be stayed pending imposition of the sentence for the primary offense. The stay shall be lifted by the court hearing the primary offense at the time of sentencing for that offense and shall be recorded in the abstract of judgment. If the person is acquitted of the primary offense the stay shall be permanent." (Italics added.)
Defendant was not "sentenced on the secondary offense prior to [his] conviction of the primary offense." (§ 12022.1, subd. (d).) Rather, defendant was convicted of the primary and secondary offenses in the same proceeding. Thus, subdivision (d) of section 12022.1 did not apply here, and the trial court did not err when it imposed sentence on the enhancement.
D. Striking Punishment for the Prior Prison Term Enhancement
Defendant contends that the prior prison term enhancement (former § 667.5, subd. (b)) must be stricken based on recent legislation.
Defendant was sentenced on February 2, 2018. Pursuant to section 667.5, subdivision (b), the trial court imposed a consecutive one-year term for defendant's prior prison term. Defendant served the prior prison term for his 2001 conviction of possession of a controlled substance for sale (Health & Saf. Code, § 11351).
On October 8, 2019, the Governor signed Senate Bill No. 136, which amended section 667.5, subdivision (b). (People v. Lopez (2019) 42 Cal.App.5th 337, 340 (Lopez).) Under the amendment, the one-year enhancement under section 667.5, subdivision (b) applies only if the defendant's prior prison term was "for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." (Stats. 2019, ch. 590, § 1.)
The amendment to section 667.5, subdivision (b) became effective on January 1, 2020. (Lopez, supra, 42 Cal.App.5th at p. 341.) The amendment applies retroactively to all defendants whose judgments are not yet final as of that date. (Lopez, supra, at pp. 341-342.) " '[F]or the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed. [Citations.]' [Citation.]" (People v. Vieira (2005) 35 Cal.4th 264, 306.)
Defendant's case was not final on the effective date of the amendment to section 667.5, subdivision (b). We will therefore order the section 667.5, subdivision (b) enhancement stricken. (See People v. Wright (2019) 31 Cal.App.5th 749, 756.)
IV. DISPOSITION
The judgment is reversed. On remand, the trial court is directed to strike the allegation that defendant served a prior prison term (Pen. Code, § 667.5, subd. (b)). In addition, the trial court is directed to strike the true finding on the allegation that defendant suffered a prior serious or violent felony adjudication (Pen. Code, § 1170.12, subd. (c)(1)). If the People elect to retry the prior serious or violent felony adjudication allegation, the trial court shall resentence defendant following retrial. If, within 60 days after the remittitur issues from this court, the People have not filed and served an election to retry the serious or violent felony adjudication allegation, the trial court shall dismiss that allegation and resentence defendant.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.