Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 050508481
Haerle, J.
I. Introduction
Appellant pled no contest to all counts of a five-count information alleging second degree robbery and being a felon in possession of a firearm; he also admitted the charged enhancements, six prior felony convictions, and three prior serious felony convictions. He was sentenced to a state prison term of 55 years to life. He appeals from the sentence imposed, claiming that (1) a prior federal conviction could not properly be used as a prior strike, (2) the trial court abused its discretion in declining to strike one of his prior strikes, and (3) it also improperly used the amended version of Penal Code section 1170 in sentencing him. We reject all these arguments and affirm the judgment below.
All statutory references are to the Penal Code, except later references to “section 2113(a),” which are to title 18 United States Code section 2113(a).
II. Factual and Procedural Background
Because of appellant’s plea of no contest and his admission of the personal use enhancements, the description of the circumstances of the crime is derived from the probation department report.
On the afternoon of April 8, 2005, appellant entered a Bank of America branch in Brentwood wearing various disguises and carrying a semi-automatic handgun. He proceeded to rob the bank at gunpoint. He ordered the “merchant teller” to open that booth, entered it, and collected a large amount of currency. He also collected cash he ordered the various tellers in the bank to place on the counters in front of them. However, during the robbery, someone called 911 and alerted the police. Appellant ran from the bank and down an alley, jumped over a fence, and entered a car parked on Second Street in Brentwood. Another person was seen slumped in the driver’s seat of that car. Before the car could leave that location, however, the police arrived and ordered appellant out of the car. He complied and lay down, but then struggled when the police tried to handcuff him. He finally stopped struggling after being “tasered” by a police officer.
The police found on his person a fully-loaded nine-millimeter handgun with the serial number shaved off and the various disguises he had worn into the bank. In a black bag he had carried into and out of the bank, they found over $30,000 in cash, the proceeds from the robbery.
At the police station, appellant admitted the bank robbery, and estimated that, over his lifetime, he had robbed about 50 banks and been in and out of prison many times.
On June 14, 2005, an information was filed in Contra Costa Superior Court which, as subsequently amended on December 8, 2005, charged appellant with four counts of second degree robbery (§§ 211, 212.5, subd. (c)) and one count of being a felon in possession of a firearm. (§ 12021, subd. (a)(1).) It was also alleged that appellant personally used a firearm in commission of the robberies charged. (§ 12022.53, subd. (b).) Six prior serious felony convictions were alleged as strikes under sections 667, subdivisions (b)-(i), and 1170.12 and three under section 667, subdivision (a)(1). An enhancement alleging that, when appellant committed the robberies, he was a felon with a recent prior prison term was also charged. (§ 667.5, subd. (b).)
Hereafter, each of these sections will be cited without use of the word “subdivision” or its abbreviation.
On January 17, 2007, appellant pled no contest to the five substantive charges and admitted the personal use allegations. He also waived a jury trial as to the prior conviction allegations.
All further dates noted are in 2007.
On March 26, appellant filed a motion to strike two of the alleged priors, being two prior convictions in the State of Oregon. The court heard the motion to strike on April 27 and May 1 and, on the latter date, both denied that motion and found all of the six prior conviction allegations to be true.
On June 15, that court found that the aggravating circumstances regarding appellant and his prior criminal record outweighed the mitigating circumstances and sentenced appellant to a total unstayed term of 55 years to life in state prison. That term was calculated as follows: an upper term of five years for the first of the four robbery counts, 15 consecutive years for the three prior serious felony convictions under section 667.5 (b), and 10 years for the personal use of a firearm enhancement under section 12022.53 (b). Similar sentences on the other three robbery counts were imposed but stayed under section 654. A concurrent term of 30 years to life was also imposed for appellant’s conviction on the fifth count, i.e., for being a felon in possession of a firearm with the section 667.5 (a) enhancement. Concurrent terms of one year under the section 667.5 (a) enhancements were also added. Appellant was given a total of 917 days’ custody credit.
On June 18, appellant filed a notice of appeal.
III. Discussion
As noted above, appellant contests the sentence imposed on three separate and distinct grounds. We shall discuss these in the order presented by the parties in their briefs to us.
A. There Was No Error in Considering Appellant’s Federal Conviction As a Serious Felony.
Appellant’s first contention is that the trial court erred in considering as strikes under section 1170.12 (c), and as serious felonies under section 667 (a)(1), two 1991 convictions of appellant for bank robbery under title 18 United States Code 2113(a). Appellant argues, as he did in the court below, that there was insufficient evidence before that court that those two federal convictions qualified under either of the Penal Code sections cited above and relied on by the trial court in sentencing appellant.
According to the record before the trial court and now before us, on October 11, 1991, appellant pled guilty to two counts of bank robbery in violation of section 2113(a) before the United States District Court for the Eastern District of California. One of the admitted bank robberies was committed in March 1991 and the other in April 1991. That section contains two separate and distinct provision which, respectively, provide: “(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or [¶] Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank or such savings and loan association and in violation of any statute of the United States, or any larceny—[¶] Shall be fined under this title or imprisoned not more than twenty years, or both.”
Appellant argues that a conviction for violation of this section “does not qualify for a five-year enhancement because it lacks the element of specific intent required for a robbery in California.” Respondent replies by relying on People v. Guerrero (1993) 19 Cal.App.4th 401, which held that a prior federal conviction of a violation of section 2113(a) may be used as a strike enhancement in California courts.
By not filing a reply brief, appellant offers no reply to this argument. However, we conclude none is necessary, because the arguments of both parties seem to have been effectively superseded one day before respondent’s brief was filed in this case by our Supreme Court’s holding in People v. Miles (2008) 43 Cal.4th 1074, 1080-1094 (Miles).
In Miles, a unanimous court affirmed a judgment of the San Joaquin County Superior Court, which had held that a federal court conviction (indeed, in the same court involved here) for “armed bank robbery” in violation of section 2113(a) constituted a conviction for a “serious felony” for purposes of sentencing under sections 667 (a), (c)-(i), and 1170.12 (a)-(c). (Miles, supra, 43 Cal.4th at pp. 1079 & 1080, fn. 3.) The defendant in that case had argued, as appellant does here, that the two paragraphs of section 2113(a) quoted above describe crimes that are separate and distinct, at least for California’s “serious felony” statutes. Our Supreme Court agreed with that premise, noting that the offense described in the second paragraph of the federal statute was not, for California sentencing purposes, a “serious felony.” (Miles,at pp. 1081-1082 & fn. 6.) Thus, the issue in Miles was––and in the instant case is––which paragraph of section 2113(a) was implicated in the federal conviction (a 1976 conviction in Miles, two 1991 convictions in this case).
The Miles court resolved that issue on several bases. The first was that the trial court had specifically relied on the “words of the offense” appearing in the federal conviction form before it, specifically the term “robbery.” (Miles, supra, 43 Cal.4that p. 1085.) In an extended paragraph discussing the meaning of that term for California statutory purposes, the court made clear that under a whole host of definitions—both statutory and in dictionaries––that term almost certainly defined a serious felony. (Id. at pp. 1085-1087.) It concluded its discussion of that factor by concluding that the federal judge’s “official notation describing the offense committed under section 2113(a) as ‘bank robbery’ . . . most likely refers to the forcible taking form of the offense, as it existed in 1976” and “gives rise to the strong prima facie inference that defendant pled to, and was convicted of, a crime California considers a serious felony.” (Id. at pp. 1087, 1092.)
The Miles court went on to add several other premises to support its conclusion, i.e., the facts that the defendant there had (1) also pled guilty to the federal crime of kidnapping under section 2113(d) and (e), and (2) “made no effort to” introduce rebuttal evidence suggesting that the crime actually charged implicated the second paragraph of section 2113(a). (Miles, supra, 43 Cal.4th at p. 1092.)
In so holding, our Supreme Court disapproved the holding but not the result reached in Guerrero, where the appellate court had held that merely the recitation in the federal judgment that the conviction was for a violation of section 2113(a) was sufficient to establish the commission of a serious felony. It also distinguished another appellate court holding, People v. Jones (1999) 75 Cal.App.4th 616, which had disagreed with Guerrero and held that a notation on a federal “fingerprint card” that the defendant had been convicted of a “Bank Robbery” was insufficient to establish a California “serious felony,” when the “Judgment and Commitment” form in the same case had indicated only a conviction under section 2113(a). (People v. Jones, at pp. 631-633.)
In the course of disapproving the holding but not the result in Guerrero and distinguishing Jones, our Supreme Court stated that it was not deciding “whether the ‘robbery of a bank’ notation in [a] federal judgment . . . [is] sufficient to establish a conviction under the forcible taking prong of section 2113(a), and thus a California serious felony.” (Miles, supra, 43 Cal.4th at p. 1094 & fn. 14.) We note, however, (1) the strong emphasis the Miles court placed on the significance of the word “robbery” for California “serious felony” purposes (see id. at p. 1085), (2) here as in Miles no rebuttal evidence regarding the nature of the offense charged in the federal court was proffered by appellant, and thus (3) the “strong prima facie inference that defendant pled to, and was convicted of, a crime California considers a serious felony” (id. at p. 1092) remains viable. For these reasons, we conclude that the two federal convictions of appellant for “Bank Robbery” constitute serious felonies under California law.
B. There Was No Abuse of Discretion by the Trial Court Regarding Appellant’s Priors.
Appellant’s second contention is that the trial court misunderstood the “brain dysfunction” under which appellant suffered and hence abused its discretion in not dismissing “several of the strike priors pursuant to Penal Code section 1385” and thus sentencing him “as a second strike offender.” We disagree.
In the first place, our Supreme Court has, indeed several times, made clear that a claim of abuse of discretion in failing to strike prior convictions for Three Strikes purposes faces a significant uphill climb. Thus, in People v. Carmony (2004) 33 Cal.4th 367, 376-378, that court wrote on this subject: “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘ “[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” ’ [Citations.] Second, a ‘ “decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. [¶] Because ‘all discretionary authority is contextual’ [citation], we cannot determine whether a trial court has acted irrationally or arbitrarily in refusing to strike a prior conviction allegation without considering the legal principles and policies that should have guided the court’s actions. We therefore begin by examining the three strikes law. [¶] ‘[T]he Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts’ discretion in sentencing repeat offenders.’ [Citation.] To achieve this end, ‘the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court “conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.” ’ [Citation.] [¶] Consistent with the language of and the legislative intent behind the three strikes law, we have established stringent standards that sentencing courts must follow in order to find such an exception. ‘[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, “in furtherance of justice” pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’ [Citation.] [¶] Thus, the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. [¶] In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances.”
No such abuse is shown here.
Appellant contends that, in refusing to strike some of appellant’s many prior bank robbery strikes, the trial court misunderstood the nature of the mental condition from which––at least according to the psychiatric evidence submitted by his trial counsel––he may have suffered. That condition was, appellant argues in his sole brief to us, “obsessive-compulsive disorder (OCD), a type of brain dysfunction.” But, his brief goes on to argue, the trial court incorrectly understood appellant’s mental condition to be “Obsessive Compulsive Personality Disorder (OCPD),” a condition which is “completely different” from OCD. Thus, the brief continues, “the trial court failed to exercise informed discretion in ruling on appellant’s motion to strike his prior convictions.”
This argument simply does not withstand scrutiny. The trial court had before it two reports signed by three neuropsychiatrists, one written in August 2006 and the other in February 2007. Both included detailed analyses of appellant’s many criminal offenses and the mental conditions which may have contributed to these. The first concluded that “the pattern of [appellant’s] neuropsychological testing is like that of individuals who are diagnosed with an obsessive-compulsive disorder.” The second likewise stated that appellant’s “descriptions of his thinking and actions prior to, during, and after this current offense,” his “descriptions of prior offenses,” and his testing all “suggest” or “indicate” or are “like that of individuals who experience” OCD.
At the sentencing hearing, the trial court stated that it had “certainly considered all of the information submitted including the neuropsychiatric information indicating that [appellant] suffers from a personality disorder and compulsive personality which predisposes him to commit these bank robberies.” It nonetheless found that, under all the circumstances, it was “difficult . . . to find this a significant factor in mitigation” inasmuch as appellant had apparently repeatedly stated to others: “I am just a bank robber.” The court noted that that statement “is certainly borne out by his history.”
As noted, appellant now argues that the trial court confused OCD with another mental illness his counsel labels OCPD. But there is no discussion in any of the record we have examined of the nature or possible presence of anything labeled OCPD. Additionally, the entire basis for appellant’s contention that the trial court was referring to any such condition was its use of the word “personality.” But it is quite unfair to seize on such a word, uttered by a layman regarding psychiatry and neurology, and convert that usage into the argument that the trial court misunderstood what the experts were suggesting in their reports. The trial court’s citation to one of appellant’s statements to, apparently, one of the experts confirms that it had, indeed, read and considered the two neuropsychiatric reports.
C. There Was No Error in Sentencing Appellant to the Upper Term under Section 1170.
Finally, appellant argues that the trial court erred in sentencing appellant to the upper term of five years on the first robbery count with which he was charged, because it did so in reliance on the version of section 1170 in effect at the time of sentencing rather than the version in effect in 2005, when the charged robberies were committed, and such a ruling violates ex post facto principles.
In 2005, section 1170 provided that the midterm for any charged offense for which a defendant was convicted was the presumed correct term. In 2007, in response to the United States Supreme Court’s ruling in Cunningham v. California (2007) 549 U.S. 270, the Legislature revised that statute to provide that the appropriate term to be imposed “shall rest within the sound discretion of the court.” (§ 1170 (b).)
As the People point out, there are several things wrong with this argument. In the first place, it is contrary to our Supreme Court’s ruling in People v. Sandoval (2007) 41 Cal.4th 825, 843-858, where that court held that, when a conviction is remanded for resentencing under the current version of section 1170, the trial court should follow the directives of those amendments, and doing so does not violate the ex post facto clauses of the California and United States Constitutions. (Sandoval, supra, at pp. 343-858.) Appellant agrees that such was the holding of Sandoval, but contends––in the interests of preserving the issue for possible federal review––that that case was “wrongly decided.” But he also acknowledges, correctly, that we are bound by it. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Second, even under the 2005 “presumed midterm” era of section 1170, the law was and is clear that a trial court may select the upper term without referring any fact-finding issue to the jury if the record shows, and the court relies upon, the recidivism of the defendant. This was the holding of our Supreme Court in People v. Black (2007) 41 Cal.4th 799, 819-820. This appellant had numerous priors, including apparently at least six for bank robberies. Appellant argues that Black was also incorrectly decided, but again acknowledges (1) both the necessity of our following it and (2) the fact that, among other things, this trial court “relied on several recidivism related factors in support of the upper term in this case.” The trial court did, indeed, do that, and specifically mentioned appellant’s “multiple prior prison terms” as a factor in aggravation.
Finally, any error by the trial court in its sentencing of appellant was harmless beyond a reasonable doubt because of the numerous prior convictions of appellant established by the record herein and conceded to be the case in appellant’s brief to us. (See Sandoval, supra, 41 Cal.4th at p. 838, applying Washington v. Recuenco (2006) 548 U.S. 212.) As the Sandoval court explained: “[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.” (Sandoval, supra, 41 Cal.4th at p. 839.) We so find here.
IV. Disposition
The judgment is affirmed.
We concur: Kline, P. J., Lambden, J.