P. v. Allen

Filed 3/1/06 P. v. Allen CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In these consolidated appeals, defendant Roger Allen challenges a sentence imposed after remand from this court. Defendant contends that at the resentencing for his battery convictions the trial court exceeded its jurisdiction by finding a new prior conviction and increasing the original punishment. Defendant further contends that he received ineffective assistance of counsel because his attorney failed to object to the use of an appellate opinion from Oregon to establish a prior "strike" within the meaning of the Three Strikes law. We will affirm the judgment.

Background

Defendant was originally convicted in a court trial of two counts of battery by a prisoner on a non-prisoner (Pen. Code, § 4501.5) and one count of aggravated battery by "gassing" on a prison officer (Pen. Code, § 4501.1).[1] The court also found true a special allegation that defendant had suffered several prior felony convictions in Oregon which constituted "strikes" within the meaning of the "Three Strikes" law, section 1170.12, subdivision (c)(2): a 1974 manslaughter and multiple counts of second degree kidnapping.

Upon defendant's first appeal (H025374), this court held that a postjudgment prison official's report could not be used to find the factual predicate of a strike. We reversed the judgment and remanded for retrial of the allegation that defendant had suffered prior serious felony convictions in Oregon for manslaughter and second degree kidnapping within the meaning of the Three Strikes law.

In the opinion in H025374, we noted that even if the postjudgment report had been admissible, it did not establish a prior "strike" conviction based on the manslaughter. Upon remand, the prosecutor conceded that the manslaughter conviction was not a valid strike. The parties then debated whether the Oregon kidnapping convictions constituted strikes under California law. The trial court relied on an Oregon appellate opinion which summarized the facts underlying defendant's kidnapping convictions. The court thus found that a prior conviction had been established for purposes of Three Strikes sentencing. It then imposed a sentence of 25 years to life for the "gassing" count, a concurrent term of 25 years to life for the first battery count, and a stayed sentence for count three, the remaining battery count. Defendant filed a timely appeal (H028256) from the ensuing judgment, which was entered on November 19, 2004.

In February 2005, while H028256 was pending, the court recalled defendant's sentence to correct an inadvertent misstatement it had made at the previous sentencing hearing. The court also clarified its finding that the Oregon appellate opinion, which had recited the factual context of defendant's second degree kidnapping convictions, described conduct that constituted kidnapping under California law. It further reaffirmed its conclusion that these kidnapping offenses constituted "valid strike priors." The court added that a 1992 Oregon conviction of robbery, which defendant had not contested in H025374, also constituted a strike prior.

The court then re-imposed a term of 25 years to life for count one, made an identical term concurrent in count two, and again stayed an unspecified sentence on count three. The total sentence was to run consecutive to any other terms defendant was currently serving. After judgment was entered, defendant brought another appeal (H028751), which was consolidated with H028256.

Discussion

1. Double Jeopardy

At the first sentencing hearing following remand, defendant objected that he had already been placed in jeopardy for the kidnapping prior-conviction allegation at the original sentencing. On appeal, he submits that the Double Jeopardy clause of the Fifth Amendment prohibits retrial of the strike allegation. The People respond that defendant's argument is insupportable because the reversal in H025374 was for ineffective assistance of counsel, not for insufficiency of the evidence. They point out that we specifically remanded this case for the purpose of retrial of the strike allegation.

Assuming the issue is properly before us, we nevertheless must accept defendant's concession that we are bound by the contrary holdings of the United States Supreme Court and California Supreme Court in Monge v. California (1998) 524 U.S. 721, 729 and People v. Monge (1997) 16 Cal.4th 826, 832-843. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) [2] Thus, notwithstanding defendant's argument that these decisions are no longer viable authority in light of Apprendi v. New Jersey (2000) 530 U.S. 466, a position to which we do not subscribe,[3] we conclude that retrial of the strike allegation was not precluded by double jeopardy principles.

2. Jurisdiction to Recall Sentence

Defendant next contends that section 1170, subdivision (d), which authorizes recall of sentences within 120 days, was inapplicable in his case because that statute applied only to determinate sentences, whereas he received an indeterminate sentence governed by the Three Strikes law. The People correctly point out, however, that section 1170, subdivision (d), equally applies to indeterminate sentences.[4] Alternatively, defendant argues, the Three Strikes law "is a separate sentencing scheme and is not controlled by Penal Code section 1168, subdivision (b)." Furthermore, he argues, even if recall was authorized by the statute, the trial court nonetheless erred because it imposed a sentence that exceeded the original sentence.

We can find no basis in law or policy to exempt Three Strikes sentences from the potential benefit afforded defendants by section 1170, subdivision (d). The provision allows courts to correct unauthorized sentencing decisions in a timely manner and promotes the express legislative goal of promoting uniformity of punishment. Defendant's suggestion that a Three Strikes sentence is not an indeterminate term cannot be sustained in light of the statutory language itself. (See § 1170.12, subd. (c)(2)(A) [prescribing "indeterminate" life term with minimum calculated according to three options]; see also People v. Lyons (1999) 72 Cal.App.4th 1224, 1228.)

We further disagree with defendant's argument that the trial court improperly conducted a new trial on the priors and thereby increased the sentence it had previously imposed. At the November 2004 sentencing hearing, the court found one strike conviction based on an Oregon robbery and "at least one – and actually more than that – but the existence of one strike, plus the robbery that was obviously valid, still makes this a three strikes case . . . ." The "at least one" strike was based on the court's finding that defendant "was criminally responsible for the asportations, plural, that took place" during the Oregon kidnappings. It did not render an "effective acquittal on any third strike," as defendant suggests. The resulting sentence in that proceeding consisted of two concurrent terms of 25 years to life. After recall, the court found two kidnappings arising from a single episode to be valid strike priors, in addition to the uncontested prior robbery. The finding was a more detailed explication of its prior determination that defendant had suffered more than one kidnapping conviction that could serve as the predicate for a strike. In any event, the resulting sentence was again two concurrent terms of 25 years to life. No due process violation occurred. (Cf. People v. Barragan (2004) 32 Cal.4th 236, 244 [due process clause cannot be used to bar retrial of strike allegation where double jeopardy protection is unavailable].)

Defendant further contends that the court improperly increased his sentence by making it consecutive to any other term he was currently serving.[5] As the People point out, however, the November 2004 sentence, to comply with section 1170.12, subdivision (a)(8), had to be served consecutively "to any other sentence [that] the defendant is already serving, unless otherwise provided by law." Section 669 does not offer an applicable exception; it only sets a presumption of concurrent sentencing when the court does not specify otherwise.[6] This was not a sentencing choice that could have been made in defendant's favor, but a statutory mandate, which the court recognized in 2002 when it originally sentenced defendant.[7] We will not presume that the court's silence served to supersede the law requiring a consecutive sentence.

3. Failure to Object to Oregon Priors

At sentencing following remand of H025374, the prosecutor sought to introduce the appellate opinion in State v. Allen (1987) 89 Ore.App. 167, 747 P.2d 384, to prove that defendant's Oregon convictions of second degree kidnapping constituted prior serious felonies within the meaning of the Three Strikes law. At both the November 2004 hearing and the March 2005 hearing upon recall, the trial court relied on the Oregon appellate court's description of the facts in State v. Allen, supra, in finding that defendant's conduct in that case was consistent with simple kidnapping as defined in California under section 207. On appeal, defendant contends that he received ineffective assistance of counsel because his attorney failed to object to the admission of this evidence.

To succeed in his claim, defendant must demonstrate not only that his attorney's performance fell below an objective standard of reasonableness, but also that but for counsel's failure to object, the result of the proceeding would have been different -- that is, the trial court would not have relied on any of the invalid prior conviction evidence. (Strickland v. Washington (1984) 466 U.S. 668, 684; People v. Price (1991) 1 Cal.4th 324, 440.) "The decision whether to object to evidence at trial is a matter of tactics and, because of the deference accorded such decisions on appeal, will seldom establish that counsel was incompetent." (People v. Lucas (1995) 12 Cal.4th 415, 444.)

Furthermore, "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result." (Strickland v. Washington, supra, 466 U.S. at p. 697; People v. Vargas (2001) 91 Cal.App.4th 506, 536-537.) In this case, trial counsel's performance, even if deficient, would be prejudicial for purposes of defendant's ineffective-assistance claim only if an objection to the Oregon opinion would properly have been sustained. We turn to that predicate question.

It is settled that a trier of fact may consider the "entire record of the proceedings leading to imposition of judgment on the prior conviction" in determining whether a prior conviction qualifies as a strike. (People v. Myers (1993) 5 Cal.4th 1193, 1195, 1201-1202.) In People v. Woodell (1998) 17 Cal.4th 448, our Supreme Court held that an appellate opinion from another state is part of the record of conviction, but that "[t]he normal rules of hearsay generally apply to evidence admitted as part of the record of conviction to show the conduct underlying the conviction." (Id. at p. 458.) The North Carolina appellate opinion before the court was admissible for a nonhearsay purpose--that is, to determine whether the conviction under scrutiny was based on personal use of a weapon or on vicarious liability for another's use of the weapon. Thus, "[t]he appellate court's discussion of the evidence [was] relevant and admissible, not to show exactly what the defendant did, but to show whether the trial court found, at least impliedly, that the conviction was based on personal use rather than vicarious liability." (Id. at p. 460.) Rejecting the defendant's emphasis on the hearsay nature of each factual statement contained in the North Carolina court's opinion, the Woodell court explained that when used for a nonhearsay purpose, "admissibility of an appellate opinion used for this nonhearsay purpose does not turn on whether each factual statement in that opinion comes within an exception to the hearsay rule but on whether the opinion logically shows what the original trial court found was the basis of the conviction. When a trial court considers whether to admit an appellate opinion for this purpose, it should focus on the issue the jury has to resolve in determining whether the conviction is a qualifying one. It should carefully consider whether the opinion as a whole, including any factual statements, is probative on whether the conviction was based on a qualifying theory. It should not simply admit any opinion containing relevant factual statements but only those probative on this specific issue. For example, if the opinion refers to facts in a fashion indicating the evidence was disputed and the factual issue unresolved, that reference would have little, if any, tendency to show the basis of the conviction and would, alone, not justify admitting the opinion. If the opinion refers to facts as established, that reference would be probative on the basis for the conviction. A statement in an opinion that the trial court specifically found certain facts would be highly probative on the nature of the conviction." (Ibid.)

Guided by the Supreme Court's reasoning in Woodell, we conclude that the appellate opinion in State v. Allen, supra, 89 Ore.App. 167 (747 P.2d 384) was admissible. The Oregon appellate court first had before it the question of the remedy for instructional error, where the trial judge had erroneously told the jury not to consider the lesser included offense of kidnapping in the second degree unless it first found defendant not guilty of kidnapping in the first degree. After reversal and remand by the Oregon Supreme Court, defendant pleaded guilty to the lesser included offenses of kidnapping in the second degree.[8] The remaining issue on appeal was whether he could be sentenced separately for kidnapping and escape. The appellate court held that he could, because the defendant's plea indicated that he had intended to interfere with the victims' liberty independently of the escape. (State v. Allen, supra, 747 P.2d at p. 386.)

The appellate opinion in State v. Allen, supra, summarized the facts underlying defendant's offense, as follows: "On July 25, 1982, defendant, along with Steven Kessler and other inmates of the A tank at Rocky Butte Jail, escaped from A tank. Kessler had a pistol. He subdued guard Stockton in the jail's dining room. When Turney, the jail shift commander, unexpectedly entered the dining room, Kessler subdued him and forced the two guards to go to the rear security door of the jail's control center. Kessler forced Turney to help the inmates gain entrance to the control center. Once inside the center, the prisoners were able to escape from the jail." (State v. Allen, supra, 747 P.2d at p. 385.)

Defendant contends that these facts are inadmissible hearsay. We disagree. The trial court was permitted to look to the appellate court's summary not just to show that defendant did these acts, but to determine whether the conviction was based on asportation of the victims or only confinement. This was a nonhearsay purpose for which the Oregon appellate court's summary was admissible. Defendant's point that the Oregon Court of Appeals was concerned with a different issue (whether the use of force was separate for escape and kidnapping) is unavailing. Under Woodell, the trier of fact in this state may rely on the out-of-state appellate opinion to determine whether the conviction was based on facts that established the fact at issue in the California case, even if the foreign court did not make a specific finding on that issue in order to convict him.

To prove a prior conviction of kidnapping, the prosecution had to show that defendant's conduct satisfied the elements set forth in section 207. That provision defines kidnapping as follows: "Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping." In order to prove the commission of this crime, the prosecution must establish that (1) a person was unlawfully moved by the use of physical force or fear; (2) the movement was without the person's consent; and (3) the movement of the person was substantial in character. (See People v. Jones (2003) 108 Cal.App.4th 455, 462.)

In determining whether the movement of the victim was "substantial," the trier of fact considers the totality of the circumstances, guided by "such factors as whether that movement increased the risk of harm above that which existed prior to the asportation, decreased the likelihood of detection, and increased both the danger inherent in a victim's foreseeable attempts to escape and the attacker's enhanced opportunity to commit additional crimes." (People v. Martinez (1999) 20 Cal.4th 225, 237.) Also relevant to substantiality when an associated crime is involved is "whether the distance a victim was moved was incidental to the commission of that crime." (Ibid.) The Martinez court thus refocused attention on the evidence rather than "abstract concepts of distance," yet it also emphasized "that contextual factors, whether singly or in combination, will not suffice to establish asportation if the movement is only a very short distance." (Ibid.)

Viewing the evidence in the light most favorable to the trial court's finding (cf. People v. Moenius (1998) 60 Cal.App.4th 820, 824), we conclude that the Oregon appellate court's opinion in State v. Allen, supra, 747 P.2d 384 supplies substantial evidence supporting the trial court's finding of asportation under section 207. (Cf. People v. Zangari (2001) 89 Cal.App.4th 1436, 1448.) Defendant and his fellow inmates moved the two jail guards from the dining room to the control center, from which they were able to effect their escape. The trial court was entitled to consider this movement to be "substantial in character" in accordance with the guidance offered by Martinez. Consequently, we cannot agree with defendant that an objection to admission of the appellate opinion would have resulted in a more favorable outcome.

Disposition

The judgment is affirmed.

_____________________________

ELIA, J.

WE CONCUR:

_______________________________________

PREMO, Acting P. J.

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BAMATTRE-MANOUKIAN, J.

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[1] All further statutory references are to the Penal Code unless otherwise specified.

[2] Defendant explains in his reply brief that he raised this issue to preserve it for federal review.

[3] Apprendi did not undermine the Monge rule, but specifically excluded prior conviction determinations from its holding: "Other 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." (Apprendi, supra, 530 U.S. at p. 490.) Nor is People v. Seel (2004) 34 Cal.4th 535 of assistance; double jeopardy barred retrial in that case because the premeditation determination, unlike a prior conviction finding, was the functional equivalent of a finding of an element of the offense. (Id. at p. 550.)

[4] The recall provision states, in pertinent part: "When a defendant subject to this section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the state prison and has been committed to the custody of the Director of Corrections, the court may, within 120 days of the date of commitment on its own motion . . . recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence."

[5] After designating count two as concurrent to count one and staying sentence on count three, the court summarized the total commitment as "25 years to life for Count One. That term runs consecutive with any that Mr. Allen is currently serving."

[6] Section 669 states that if the trial court fails to specify whether the terms of imprisonment imposed on a second or subsequent judgment shall run consecutively to or concurrently with a prior uncompleted term, "the term of imprisonment on the second or subsequent judgment shall run concurrently."

[7] At the original sentencing hearing in H025374, the trial court imposed two concurrent 25-to-life terms, "consecutive to anything Mr. Allen is currently serving."

[8] The applicable Oregon statute provides: "(1) A person commits the crime of kidnapping in the second degree if, with intent to interfere substantially with another's personal liberty, and without consent or legal authority, the person: [¶] (a) Takes the person from one place to another; or [¶] (b) Secretly confines the person in a place where the person is not likely to be found." (Or. Rev. Stats. § 163.225) Oregon defines "without consent" to mean "that the taking or confinement is accomplished by force, threat or deception . . . ." (Or. Rev. Stats § 163.215, emphasis added.)