Filed 4/3/18 P. v. Haggerty CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER HAGGERTY,

Defendant and Appellant.
D072662



(Super. Ct. No. SCN372108)

APPEAL from a judgment of the Superior Court of San Diego County, Blaine K. Bowman, Judge. Affirmed as modified and remanded with directions.
Jill Kent, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
In this case Christopher Haggerty was convicted of one count of burglary of an inhabited dwelling (Pen. Code, §§ 459, 460, subd. (a)). Based upon a prior Illinois conviction for robbery, the prosecution alleged a serious felony prior conviction (§ 667, subd. (a)(1)) and a serious/violent felony [strike] prior. Following the verdict, the court held a hearing and reviewed the record as then permitted by People v. McGee (2006) 38 Cal.4th 682 (McGee). The trial court concluded the Illinois prior qualified as a serious felony in California. Accordingly, the court imposed a second strike sentence of eight years (the middle term doubled), plus five years for the serious felony prior conviction, and one year for the prison prior (§ 667.5, subd. (b)), for a total of 14 years.
Haggerty appeals contending the trial court impermissibly engaged in judicial factfinding in order to determine that the Illinois prior qualified as a serious felony.
After the sentencing in this case, the California Supreme Court issued its opinion in People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo), in which it disapproved of the judicial factfinding process, which had been approved by McGee, supra, 38 Cal.4th 682. Based upon the rule established in Gallardo, the People correctly concede the case must be remanded for the limited purpose of providing the prosecution the opportunity for a new hearing to attempt to establish the validity of the Illinois prior as a serious felony. Accordingly, we will vacate the sentence and remand the case to the superior court for a new hearing on the prior conviction as mandated by Gallardo.
DISCUSSION
In order for an out-of-state conviction to qualify as a serious felony prior conviction in California such crime must include all of the elements of a serious felony in this state. (People v. Navarette (2016) 4 Cal.App.5th 829, 842.) In order to use such prior to increase a sentence, the People must prove, beyond a reasonable doubt that the prior crime has all of the elements of a serious felony. (Ibid.)
The problem presented in this case is the Illinois crime of robbery does not include all of the elements of robbery in California. Specifically, Illinois robbery does not require specific intent to steal although the California crime requires such intent. The trial court in this case, consistent with the process approved in McGee, supra, 38 Cal.4th 682, reviewed the record and concluded the offense actually committed in Illinois was done with the specific intent to steal.
As we have observed, the court in Gallardo, supra, 4 Cal.5th 120 disapproved of the McGee process and has severely limited the role of judicial factfinding involving the validity of prior convictions such as that presented here. However, the court found that in cases such as this, the appellate court can order a limited remand to provide the prosecution the opportunity for a new hearing in which it might be able to prove the prior conviction qualifies as a serious felony in this state. Haggerty has requested such remand and the People concur.
DISPOSITION
The sentence is vacated and the case remanded for the limited purpose of permitting a new hearing on the question of whether the Illinois prior conviction qualifies as a serious felony within the meaning of sections 667, subdivision (a)(1) and 667, subdivisions (b) through (i). Any hearing conducted on this remand shall comply with the rules established by Gallardo, supra, 4 Cal.5th 120. If the court finds the prior conviction does not qualify as a serious felony it shall resentence Haggerty accordingly. If the court properly finds the prior conviction does qualify as a serious felony the court shall reinstate the sentence. In all other respects, the judgment is affirmed.


HUFFMAN, J.

WE CONCUR:



McCONNELL, P. J.



HALLER, J.