P. v. Glasser

Filed 3/20/07 P. v. Glasser CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, John L. Davidson, Judge. Reversed and remanded.

The People appeal from an in limine order of the trial court dismissing allegations that Eben D. Glaser had previously been convicted in Washington state of a second degree robbery on August 8, 1989, which constituted both a serious and/or violent felony under Penal Code section 667, subdivision (a)^[1]and a strike under the three strikes law ( 667, subds. (b)-(i); 1170.12). The People contend the challenged order is appealable under section 1238, subdivisions (a)(1), (a)(2), (a)(8), and (a)(10); and that the trial court erred as a matter of law in determining that the Washington state prior conviction did not contain all the elements of a California robbery for purposes of the serious felony enhancement and three strikes sentencing. We agree and accordingly reverse and remand for further proceedings on those allegations.

FACTUAL AND PROCEDURAL HISTORY

After a preliminary hearing, Glaser was bound over for trial on an information charging him with robbery while on felony probation ( 211, 1203, subd. (k)) and misdemeanor possession of drug paraphernalia (Health & Saf. Code,  11364), crimes arising out of an incident in downtown San Diego on October 5, 2005. The information also alleged that Glaser had previously been convicted of an August 1989 second degree robbery, in the superior court of Snohomish County, Washington, case number 89-1-00841-1, which qualified as a serious felony under sections 667, subdivision (a)(1), 668, and 1192.7, subdivision (c). The same out-of-state prior conviction was also alleged as one of seven prior felony convictions which made Glaser presumptively ineligible for probation under section 1203, subdivision (e)(4).

Before jury selection, the People filed an amended information adding a second felony count charging Glaser with attempted robbery while on felony probation. That same day, Glaser filed points and authorities in support of a motion to bifurcate the jury trial on the prior conviction allegations and for "judgment of acquittal as to serious or violent felony prior, alleged pursuant to [sections] 667(a)(1), 667 (b) through (i), 668, 1170.12 and 1192.7(c)." In the latter motion, Glaser essentially argued that because the facts of the underlying offense were not properly before the court,^[2]the least adjudicated elements test compelled a finding of not guilty with respect to the serious prior and strike allegations as Washington state's statute on robbery did not include the element of the intent to permanently deprive the victim of his or her property which was statutorily required in California.

The People filed opposition to the acquittal motion, arguing that Glaser's conduct leading to the out-of-state robbery conviction was sufficient to support the strike and serious prior allegations without looking at the elements of the comparable California offense. Additionally, the People asserted that the definition of the elements of the crime of robbery in Washington state was the same as that in California. In support of its position, the People attached certified copies of the Washington court records, including the information filed July 28, 1989, charging Glaser with second degree robbery "committed as follows: That the defendant, on or about the 2nd day of July, 1989, did unlawfully take personal property, to-wit: a bracelet, from the person or in the presence of Phary Kong, against such person's will, by use or threatened use of immediate force, violence or fear of injury to Phary Kong; proscribed by [Revised Code of Washington section] 9A.56.210, a felony." Also attached was a preprinted "statement of defendant on plea of guilty" which included Glaser's handwritten statement that "[i]n Snohomish County, on July 2, 1989, I took a bracelet from the person of Phary Kong by force against her will." The preprinted statement of defendant on plea of guilty further included a paragraph 21 which provided that Glaser "was aware that an affidavit of probable cause has been filed in this case. The court may consider this affidavit in deciding whether there is a factual basis for my plea," and paragraph 22 which provided that Glaser certified that the facts in his statement "and appendices [were] true to the best of [his] knowledge."

The attached certified deputy prosecuting attorney's affidavit of probable cause, filed with the information and Glaser's plea statement in the Washington case, set out the factual allegations underlying the second degree robbery charge as follows:

"According to reports received from the Lynwood P.D. and statements made by witnesses, on 7/2/89 Phary Kong was robbed of her bracelet as she stood outside of a Safeway store located in Lynnwood, Snohomish County. [] Ms. Kong told police that she was walking outside the Safeway store when she was approached by a person she identified as Eben Glaser. Glaser attempted to start a conversation with Ms. Kong and asked her about a bracelet she was wearing. Suddenly, Glaser grabbed Ms. Kong's wrist and tried to pull off her ring and watch. These would not come off; next Glaser grabbed Ms. Kong's other wrist and tried to pull off her bracelet. The clasp broke on the bracelet and Glaser left. Ms. Kong contacted police. [] Glaser was subsequently arrested, and he admitted to police that he had stolen Ms. Kong's bracelet. Witnesses also told police that Glaser had sold the bracelet to them. Police recovered the bracelet."

A certified copy of the judgment and sentence based on Glaser's second degree robbery conviction by plea showed that he was ordered to pay $100, "Victim assessment," "plus restitution . . . as established by separate order. . . ." That separate order showing restitution was not included in the certified record from Washington state.

At the hearing on in limine matters, Glaser's counsel asked that the court rule on the bifurcation issue and then on the legal issue as to whether the 1989 Washington state conviction was a valid prior for purposes of the serious felony and strike allegations in California. After granting the motion to bifurcate the prior allegations, the court suggested it would proceed on the bifurcated allegations if Glaser wanted to have a court trial on the prior. After consulting with defense counsel, Glaser waived his right to a jury trial on the serious felony and strike allegations, as well as the allegation as to whether he was on felony probation at the time of the alleged offenses. The court then turned to the legal issue regarding the prior allegations, noting that the evidence to establish other matters with respect to the priors would come later depending on the legal determination.

As to such matter, the prosecutor, relying on People v. Myers (1993) 5 Cal.4th 1193, argued there was no need to reach an "element for element" analysis because Glaser's conduct stated in his factual basis in the change of plea form as well as the order of restitution on his sentencing date in the Washington case satisfied the elements under California for robbery. As to the element of intent, the prosecutor asserted such was satisfied by conduct from which the court could infer "either an intent to deprive an owner permanently of his or her property, or to deprive an owner temporarily but for an unreasonable time, so as to deprive him or her of a major portion of its value or enjoyment." (CALJIC No. 14.03.) The prosecutor further argued that the Washington and California statutes for robbery on their face were much the same, with the intent element being defined through larceny and theft statutes as noted by the respective jury instructions used to define the crime of robbery in each state.

Prefacing her argument with the assumption that the prosecutor was not asking the court to consider the affidavit of probable cause attached to its certified documents, defense counsel agreed with the court about the restitution order and argued that because Glaser's admission on the change of plea form did not mention anything about intent, the court had "to look at the corresponding Washington state statute and determine whether or not under [such] statute the crime of robbery would constitute a serious felony under . . . section 211 in the state of California."^[3] Defense counsel, relying on State v. Komok (1989) 113 Wash.2d 810 (Komok), argued the 1989 Washington prior for second degree robbery was not a serious felony prior in California because the intent requirements were different.

The trial court stated it had reread Komok, supra, 113 Wash.2d 810, as well as reviewing People v. Avery (2002) 27 Cal.4th 49 (Avery) and People v. Reynolds (1991) 232 Cal.App.3d 1528, in light of the documents submitted by the prosecutor, and thought that the Washington statute did not require the same intent to permanently deprive or to deprive property for an extended period of time so that a major portion of the value and enjoyment of the property is lost to the owner as in Avery. When the parties could not provide the court with any case authority in California that had reviewed the Washington statute in question, the trial judge tentatively ruled in Glaser's favor because "[i]f there's ambiguity or the court can't make . . . a reasonable determination, based on everything I

have before me, I think I'm required to resolve it in favor of the defendant." The court said it would allow the parties more time to provide further authorities on the matter, but reiterated that Glaser's bare statement and the elements of the statute in Washington were not sufficient to satisfy "the prior requirement under [section] 667[, subdivision(a)(1)], and [section] 668. . . , as well as [sections] 667[, subdivision] (b) through (i) and 1170.12."

After the arguments were completed, the court stated it was going to take the whole issue under submission.

When the court returned, it affirmed its tentative, stating:

"And so for our purposes, I am essentially granting a demurrer motion with respect to the information as to the allegation[s] pursuant to [sections] 667[, subdivision (a)(1)] and 668 and 1192.7[, subdivision (c)] for the second-degree robbery out of the superior court in the state of Washington in [case] no. 89-1-00841-1, as well as the allegation pursuant to [sections] 667[, subdivisions (b) through (i) [and]1170.12, within the meaning of the three strikes law for that . . . same second-degree robbery, not all the elements of robbery have been met for the state of California for the 1989 conviction in court no. 89-1-00841-1."

The court later stated it had granted a demurrer and a dismissal of the prior serious felony and strike allegations. The court's ruling entered in the minutes by the court clerk stated: "The Court GRANTS DEMURRER MOTION as to the Amended Information as the Court finds the alleged 'Washington State' prior is found to be UNTRUE."

The next day, the court arraigned Glaser on the amended information and jury selection began. The jury subsequently convicted Glaser of all three counts in the amended information. Glaser then admitted the truth of the remaining prior conviction allegations and probation status, including the truth of the Washington state conviction for second degree robbery. The court stressed it had already determined with respect to that same prior alleged as a serious felony and as a strike that those did not qualify within the meaning of those provisions. As to that ruling, the court then entertained the prosecutor's motion for reconsideration based on the case of People v. Riel (2000) 22 Cal.4th 1153 (Riel), again reiterating that it believed Komok, supra, 113 Wash.2d 810, was controlling on the issue. The court believed that Riel did not require him to change his analysis, and that his prior ruling would stand. The court then set the matter as to all counts and allegations for sentencing.^[4]

After judgment, the People timely filed a notice of appeal from the order dismissing the serious felony and strike allegations.

DISCUSSION

I

APPEALABILITY

In response to the People's appeal, Glaser asserted it must be dismissed as not authorized by statute. He recognized, however, that at that time the issue of appealability of an order like the one appealed from in this case was pending review in our Supreme

Court in the case of People v. Trujillo, review granted February 16, 2005, S130080.

After the briefing in this case, the Supreme Court determined in People v. Trujillo (2006) 40 Cal.4th 165 (Trujillo) that the People "may appeal the imposition of the sentence in order to challenge the trial court's ruling that defendant's prior conviction . . . is not a strike" under "the plain language of subdivision (a)(10)." (Trujillo, supra, 40 Cal.4th at p. 173, citing People v. Douglas (1999) 20 Cal.4th 85, 94-95.) This holding also necessarily pertains to a challenge, as here, to a ruling that a defendant's prior conviction is not a serious felony.

In this case, as in Trujillo, the defendant misconstrues the circumstances of the case by arguing that the People may not appeal from a finding that a prior conviction is not true. (See Trujillo, supra, 40 Cal.4th at p. 173.) Although the clerk's minutes state that the court found the prior conviction allegation not true, the transcripts of the oral proceedings show otherwise. The court merely ruled on the legal issue of whether the out-of-state prior conviction constituted a serious felony and a strike in California without proceeding further with the court trial on their truth before dismissing the allegations.

Although we find Trujillo is dispositive of the appealability issue in this case, we also note that because of the procedural posture of the court's ruling on the matter, i.e., in limine before a jury had been selected, the order which essentially set aside a portion of the amended information and action, and was characterized by the court as an order granting a demurrer and a dismissal, we believe the matter is also appealable under section 1238, subdivisions (a)(1), (a)(2) and (a) (8).^[5] Accordingly, we conclude the People may appeal the court's allegedly erroneous ruling that removed the strike and serious felony allegations from the amended information and in turn allegedly rendered the resulting sentence in this case unlawful.^[6] (Trujillo, supra, 40 Cal.4th at pp. 172-174.)

II

DOES GLASER'S OUT-OF-STATE PRIOR QUALIFY AS A

SERIOUS FELONY AND STRIKE UNDER CALIFORNIA LAW?

The People contend the trial court erred as a matter of law when it ruled that the statutory elements of Glaser's Washington state second degree robbery conviction in August 1989 did not match the elements of a California robbery for purposes of serious felony and strike allegations. The People also claim that both the court and counsel incorrectly decided that the Washington prosecutor's affidavit of probable cause was not admissible as part of the "record" of the prior conviction and, therefore, erroneously refused to consider the affidavit as a factual basis for Glaser's guilty plea that would have shown the establishment of the elements for a California robbery. We need not address this latter issue at length because we determine the court erred as a matter of law regarding the legal elements issue and the People have technically waived the second issue by not having the affidavit considered below.

Turning to the legal issue, which we review de novo, we note the court in Avery explained that "'[v]arious sentencing statutes in California provide for longer prison sentences if the defendant has suffered one or more prior convictions of specified types.' [Citation.] A prominent example is a conviction of a 'serious felony' as defined in . . . . section 1192.7, subdivision (c). Conviction of a serious felony has substantial sentencing implications under the 'Three Strikes' law [citation] and also under section 667, subdivision (a)(1), which mandates a five-year sentence enhancement for each such conviction. To qualify as a serious felony, a conviction from another jurisdiction must involve conduct that would qualify as a serious felony in California. To make this determination, the court may consider the entire record of the prior conviction as well as the elements of the crime. [Citation.]" (Avery, supra, 27 Cal.4th at p. 53; fn. omitted.) "If the record insufficiently reveals the facts of the prior offense, the court must presume the prior conviction was for the least offense punishable under the foreign law. [Citations.] Robbery constitutes both a serious and violent felony. [Citations.]" (People v. Jenkins (2006) 140 Cal.App.4th 805, 810 (Jenkins).)

Here, as noted above, the trial court found the record of conviction submitted by the prosecutor, with the exception of the affidavit of probable cause which it did not consider,^[7]was ambiguous with regard to whether Glaser's conduct showed the intent to deprive another of property permanently or "for so extended a period of time as to deprive the owner of a major portion of its value or enjoyment." (Avery, supra, 27 Cal.4th at p. 52.) Because the evidence considered by the court did not sufficiently show the intent element of the prior offense, the determination of whether it would constitute a serious felony or strike if committed in California must be made from an analysis of the elements of second degree robbery under Washington law and a comparison of Washington and California law.

In Riel, supra, 22 Cal.4th 1153, our high court, in resolving the question of whether out-of-state prison terms served for two 1982 second degree burglaries in Washington state qualified as enhancements for prison priors under California law, considered, among other issues, whether theft in Washington requires an intent to permanently deprive a person of property similar to that element in California for theft offenses. (Id. at pp. 1205-1206.) The defendant in Riel, as Glaser did here, cited Komok, supra, 113 Wash.2d 810, to argue that theft in Washington "does not require an intent to deprive another of property permanently," while a theft in California does. (Riel, supra, 22 Cal.4th at p. 1205; original italics.) Although the court in Riel acknowledged that Komok did "interpret a 1975 amendment to the theft statute as eliminating the permanency requirement" [citation], it noted that the Komok case "disagreed with a 1978 intermediate appellate court decision that had interpreted the same statute as retaining the permanency requirement. [Citation.]" (Riel, supra, 22 Cal.4th at p. 1206, original italics.) Because the defendant in Riel had suffered his prior Washington convictions before Komok and after the 1978 decision, the high court concluded that at the time of conviction "Washington law did require the intent to deprive permanently." (Reil, supra, 22 Cal.4th at p. 1206.)

In this case, Glaser suffered his prior second degree robbery conviction on August 8, 1989, nearly four months before the decision in Komok, supra, 113 Wash.2d 810. Therefore, contrary to the trial court's ruling here, in light of the reasoning in Riel, supra, 22 Cal.4th 1153, Washington law required proof of an intent to permanently deprive another of their property at the time of Glaser's earlier offense and conviction.

Moreover, a comparison of the robbery statutes reveals that the written elements for robbery in each state are essentially the same. Section 211 defines robbery in California as "the felonious taking of personal property in the possession of another, from his [or her] person or immediate presence, and against his [or her] will, accomplished by means of force or fear." Under Revised Code of Washington sections 9A.56.190 and 9A.56.210, a person commits second degree robbery "when he unlawfully takes personal property from the person of another or in his [or her] presence against his [or her] will by the use or threatened use of immediate force, violence, or fear of injury to that person or his [or her] property or the person or property of anyone. . . . "^[8]

The intent required for both a robbery in California, as in Washington, is not specifically set out in the statutory definition of each respective crime, but rather found in the "same intent common to those offenses that, like larceny, are grouped in the [statutory] designation of 'theft.' " (People v. Butler (1967) 65 Cal.2d 569, 573, fn. omitted, overruled on another point by People v. Tufunga (1999) 21 Cal.4th 935, 939; see State v. Beyers (1925) 136 Wash. 620.) Cases in California have long held that the intent for robbery and other "theft" offenses requires the intent to steal or permanently deprive the own of possession of the property. (Avery, supra, 27 Cal.4th at p. 54; In re Albert A. (1996) 47 Cal.App.4th 1004, 1007.) Washington required the same intent to deprive permanently up until the decision in Komok, supra, 113 Wash.2d 810, was decided in December 1989. (Reil, supra, 22 Cal.4th at p. 1206.)

Glaser asserts that our Supreme Court wrongly decided Riel because the intermediate appellate decision in State v. Komok (1989) 54 Wash.App. 110 had created a split of authority as to whether the intent to permanently deprive was an element of theft in Washington at the time he was convicted of his second degree robbery prior in that state. At the time of the Reil opinion, the intermediate appellate decision in Komok was not yet final and merely created a conflict with long established authority that held intent to permanently deprive was still an element of theft even after the relevant 1975 statutory amendment in that state. (Reil, supra, 22 Cal.4th at pp. 1205-1206.) We are required to follow the holding in Riel, which we believe was correctly decided based on the above reasoning. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 (Auto Equity Sales, Inc.).)

Because the statutory elements of a second degree robbery at the time of Glaser's offense and conviction in Washington matched the elements for a California robbery, such prior qualified as a serious felony and strike under California law. Thus, the trial court erred as a matter of law in granting a demurrer and dismissing the allegations that Glaser's out-of-state prior constituted a serious felony and strike for sentencing purposes and its order must be reversed.

III

RETRIAL PERMISSIBLE

The parties differ regarding the appropriate remedy for reversing the court's order granting the demurrer to and dismissing the serious felony and strike allegations. The People argue for remand with directions to resentence Glaser, whereas Glaser asserts any further litigation on the issue of whether he suffered a prior conviction for a serious or violent felony for purposes of enhancements is barred by both the doctrine of the law of the case and by the double jeopardy clauses of the United States and California Constitutions. Because we have reversed the court's order regarding the prior allegations on its legal determination, we remand the matter to the trial court to conduct further proceedings on those allegations. Such further proceedings, akin to a retrial, are not precluded by either the law of the case or by constitutional double jeopardy protections.

As noted above, the court below did not reach the issues of whether the serious felony and strike allegations were true because it determined the legal prerequisite to reaching those issues had not been met. Further, contrary to Glaser, the doctrine of the law of the case is not applicable to those issues because no earlier appeal has addressed them.^[9] (See People v. Turner (2004) 34 Cal.4th 406, 417.) Moreover, Glaser recognizes Monge v. California (1998) 524 U.S. 721 and People v. Monge (1997) 16 Cal.4th 826, which we are required to follow under Auto Equity Sales, Inc., supra, 57 Cal.2d 450, have held that the constitutional jeopardy protections do not apply to a trial on allegations of prior convictions, and he additionally acknowledges that his arguments for finding such holdings erroneous interpretations of the double jeopardy clause have been rejected by the court in Jenkins, supra, 140 Cal.App.4th at pp. 813-816.

In sum, having reversed the court's order, we remand the matter to the trial court to consider whether the prior serious felony conviction and strike conviction allegations are true, and if true to exercise its discretion and resentence Glaser accordingly.

DISPOSITION

The order appealed from is reversed and the matter is remanded for further proceedings in accordance with this opinion.

HUFFMAN, Acting P. J.

WE CONCUR:

McDONALD, J.

McINTYRE, J.

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

^[2] Glaser claimed an affidavit of probable cause filed on July 26, 1989, which was included with the documents to prove-up the Washington prior was inadmissible because it was based entirely on hearsay.

^[3] In the face of counsel's assumption, the prosecutor remained silent and the court noted it had not reviewed the probable cause affidavit.

^[4] The record does not contain a transcript of the sentencing hearing. However, the parties note in their respective briefing that a total three-year prison term was imposed for the robbery conviction in this case. Glaser subsequently appealed from the judgment entered and on February 27, 2007, this court filed an unpublished opinion in that appeal, affirming the count 1 robbery conviction and reversing the count 2 attempted robbery conviction. (People v. Glaser (Feb. 27, 2007, D048513) [nonpub. opn.].)

^[5] Section 1238, subdivision (a) provides in pertinent part: "An appeal may be taken by the people from any of the following: [] (1)An order setting aside all or any portion of the indictment, information or complaint. [] (2)An order sustaining a demurrer to all or any portion of the indictment, accusation, or information. [] . . . [] (8)An order . . . dismissing or otherwise terminating . . . any portion of the action including such an order . . . entered before the defendant has been placed in jeopardy. . . ."

^[6] Because we determine the People's appeal is valid under Trujillo, supra, 40 Cal.4th 165, Glaser's unopposed motion to take judicial notice of Senate Bill No. 1850, as introduced by Senator Schiff on February 19, 1998, the report of the Senate Committee on Public Safety, prepared for the hearing on April 14, 1998, regarding Senate Bill 1850, and the report of the Assembly Committee on Public Safety prepared for the hearing on June 30, 1998, purportedly relevant to show an absence of legislative intent to authorize the People to appeal from the trial court's ruling in this case, is denied as moot.

^[7] Contrary to the People's position on appeal, the court did not rule upon Glaser's hearsay objection to the affidavit of probable cause below. Because the prosecutor was silent in the face of the court's and Glaser's assumption that such document was not being offered for the court's consideration on the legal issue before the court, there was no need for the court to rule on the evidentiary objections to the affidavit. Although we believe that the affidavit is properly part of the record of conviction as it was incorporated into the change of plea by paragraph 21 for the Washington court to consider for finding a factual basis for Glaser's guilty plea, which Glaser had affirmatively adopted, the prosecutor's acquiescence to the assumption such document was not to be considered essentially invited the error the People now raise on appeal. Under these circumstances, we find the issue waived.

^[8] Revised Code of Washington section 9A.56.190 provides in full that "[a] person commits robbery when he unlawfully takes personal property from the person of another or in his [or her] presence against his [or her] will by the use or threatened use of immediate force, violence, or fear of injury to that person or his [or her] property or the person or property of anyone. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree of force is immaterial. Such taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of force or fear."

Revised Code of Washington section 9A.56.210 provides that "(1) A person is guilty of robbery in the second degree if he commits robbery. [] (2) Robbery in the second degree is a class B felony."

^[9] Glaser's separate appeal mentioned earlier did not raise any issue concerning the validity of the prior serious felony or strike allegations.