Filed 2/24/22 P. v. Kimball CA4/2

See concurring opinion

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Stephen J. Gallon, Judge. Affirmed in part; reversed in part with directions.

Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant George Edward Kimball, Jr., appeals the Riverside County Superior Court’s finding that two convictions for felony sexual assault he suffered in Montana qualified as strikes for purposes of sentencing in a later proceeding.

I. INTRODUCTION

This is defendant’s second appeal challenging the trial court’s decision to treat his Montana convictions as strikes. In his first appeal, we reversed the court’s true finding on those convictions and remanded with instructions to review the record of conviction to determine what facts were necessarily found or admitted at the prior proceeding. (People v. Kimball (Mar. 6, 2019, E068330) [nonpub. opn.] (Kimball I).) On remand, the sentencing court again found the Montana convictions are strikes. We again reverse the court’s true findings as to defendant’s two alleged strike priors arising out of his convictions in Montana. In all other respects, we affirm.

II. BACKGROUND

The background leading to the hearing resulting in this appeal is taken from our opinion issued in Kimball I, supra, E068330.

In August 1995, in the Montana Eighth Judicial District Court in Cascade County, defendant pled guilty to two counts of felony sexual assault. The plea form contains a preprinted statement: “The following are the facts which cause me to plead guilty. I believe I am guilty of these offenses because I did the following:” In the blank space provided, the words “Alford plea” are handwritten, but no factual description of the crimes appears.

In July 2014, content moderators discovered defendant had 8,800 images of child pornography in his photobucket.com accounts. The discovery led to an investigation by Riverside County Probation Department, which resulted in a search of defendant’s home where a laptop computer containing approximately 7,000 images of suspected child pornography was discovered. An investigating officer opined the children in the photographs ranged from infancy to 12 or 13 years of age.

Defendant was charged with possession of child pornography and possession of child pornography while required to register as a sex offender. (§ 311.11, subds. (a) & (b).)[1] The People also alleged defendant had two prior strike convictions in Montana that were equivalent to subdivision (a) of section 288 (lewd or lascivious acts involving children under the age of 14, a felony). (§§ 667, subds. (c), (e)(2)(A) & 1170.12, subd. (c)(2)(A).)

Prior to trial, defendant filed a motion under section 1118 to dismiss the strike priors on the grounds the People could not prove them because (i) unlike section 288, subdivision (a), the Montana statute under which defendant was convicted did not include the requirement that the victim be under age 14, and (ii) the “Judgment of Conviction and Sentencing Order” submitted by the People could not be relied upon to establish the ages of the Montana victims. The court denied that motion, found the prior strike allegations true and, following a bench trial, found defendant guilty as charged. It denied defendant’s subsequent request to strike one or both priors pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court sentenced defendant to 25 years to life on each count but stayed one of the sentences under section 654.

On appeal from the judgment, we agreed with the parties that the trial court could not rely on the Montana “Judgment of Conviction and Sentencing Order” in view of our Supreme Court’s opinion in People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo), issued after the trial court sentenced defendant. That opinion established that to avoid a violation of a defendant’s Sixth Amendment right to a jury trial when deciding whether a prior conviction qualifies as a strike, the trial court is limited to determining the facts necessarily found in the course of entering the conviction; that is, those required to be found either to render a guilty verdict or that the defendant admitted as the factual basis for a guilty plea (the Gallardo rule). (Gallardo, at p. 136.) The Montana sentencing order had been prepared more than nine months after defendant pled guilty and, therefore, could not properly have formed the factual basis for defendant’s plea as required by the Gallardo rule.

We reversed the true findings on the prior strike convictions and remanded for resentencing and to allow the People an opportunity to present any additional evidence they could uncover to establish the Montana victims were under age 14, young enough to come within subdivision (a) of section 288, which would permit the Montana convictions to qualify as strikes under California law.

III. THE HEARING ON REMAND

On remand, the court conducted a bench trial to determine the merits of the strike allegations. The People entered into evidence a certified copy of the information filed in the criminal case in Montana. The allegations in that charging document specified defendant had sexually assaulted four-year-old Jane Doe and three-year-old John Doe without their consent in violation of Montana Code Annotated section 45-5-502 (1993), a felony. The trial court found the recital of the victims’ ages in the information is what established their lack of consent, which is a necessary element of the crime of sexual assault as defined in Montana Code Annotated section 45-5-502 (1993). With the ages of the victims established, the court found the People had met their burden of proving beyond a reasonable doubt the allegations that the prior convictions were strikes. The matter was reassigned for sentencing by the judge who had presided at defendant’s trial.

After the matter was reassigned, defendant moved for a new trial on the grounds the true findings made on remand based upon the Montana information were in error. The sentencing judge denied the motion, found defendant had two strike priors, and sentenced defendant to 25 years to life in state prison on each of the child pornography counts, with the sentence for count 2 to run concurrent with the sentence for count 1. Defendant appealed.

IV. DISCUSSION

On appeal, defendant argues the trial court’s reliance on the Montana charging document to establish the victims’ ages was improper factfinding because those facts were neither necessary to the conviction nor admitted by defendant as a factual basis for his plea. We agree that the trial court’s use of the victims’ ages as set forth in the information constituted improper factfinding.

As explained ante, in deciding whether a prior conviction qualifies as a strike, the trial court is limited by the Gallardo rule to determining what facts were necessarily found in the course of entering the conviction; that is, those required to be found to render a guilty verdict or that the defendant admitted as the factual basis for a guilty plea. (Gallardo, supra, 4 Cal.5th at p. 136.)

Here, the plea form executed by defendant states: “1. I am charged with the offense(s) of: [¶] Reference Cause No. BDC-95-086: [¶] Count I: Sexual Assault, a felony; [¶] Count II: Sexual Assault, a Felony.” “Alford plea” is entered in the portion of the form calling for a recital of the facts that “cause [defendant] to plead guilty.” The plea agreement also includes the statement: “The defendant agrees to: [¶] Reference Cause No. BDC-95-086 [¶] Count I: Sexual Assault, a felony; [¶] Count II: Sexual Assault, a Felony.”

To accept defendant’s plea, the Montana court would have been required to refer to the counts referenced in the plea form and information and agreed to by defendant to determine the particular statute defendant was accused of violating and whether there was a factual basis for the plea. (Mont. Code Ann., § 46-12-212(2); Lawrence v. Guyer (2019) 440 P.3d 1.)

Count 1 of the charging document alleged defendant had committed the offense of “SEXUAL ASSAULT, A FELONY, in violation of MCA section 45-5-502 (1993). The above-named defendant, on or between November 7, 1994, and December 1, 1994, knowingly subjected Jane Doe, four years old, to sexual contact without her consent by fondling her vagina with his fingers as well as with a sexual device similar to a vibrator. [¶] A person convicted of this offense may be imprisoned in the state prison for a term of not less than two years and not more than twenty years, or fined not more than $50,000.00, or both.”

Count 2 of the charging document alleged defendant had committed the offense of “SEXUAL ASSAULT, A FELONY, in violation of MCA section 45-5-502 (1993). The above-named defendant, on or between December 1, 1994, and December 10, 1994, knowingly subjected John Doe, three years old, to sexual contact without his consent by fondling John’s penis with his hand. [¶] A person convicted of this offense may be imprisoned in the state prison for a term of not less than two years and not more than twenty years, or fined not more than $50,000.00, or both.”

At the time of defendant’s plea, section 45-5-502 (1993) of the Montana Code Annotated provided:

“(1) A person who knowingly subjects another person to any sexual contact without consent commits the offense of sexual assault.

“(2) A person convicted of sexual assault shall be fined not to exceed $500 or be imprisoned in the county jail for any term not to exceed 6 months, or both.

“(3) If the victim is less than 16 years old and the offender is 3 or more years older than the victim or if the offender inflicts bodily injury upon anyone in the course of committing sexual assault, he shall be imprisoned in the state prison for any term not less than 2 years or more than 20 years and may be fined not more than $50,000.

“(4) An act ‘in the course of committing sexual assault’ shall include an attempt to commit the offense or flight after the attempt or commission.

“(5) Consent is ineffective under this section if the victim is less than 14 years old and the offender is 3 or more years older than the victim.”

The Montana information identifies Montana Code Annotated section 45-5-502 (1993) as the statute defendant pled guilty to violating. Under that statute, the victims’ ages are relevant and necessary to defendant’s conviction in Montana because the offense cannot be felony sexual assault as charged unless the victim is less than 16 years old. (Mont. Code Ann., § 45-5-502, subd. (3).)[2] The victims’ ages are also relevant under that statute because no person under 14 years old may lawfully give consent. (Mont. Code Ann., § 45-5-502, subd. (5).) However, a person need not be under 14 years of age to establish lack of consent. The statute only requires that the act be done “without consent” without any reference to age. Under the plain language of the statute, lack of consent is conclusively presumed as to a person under 14 years of age where the offender is 3 or more years older than the victim. (Mont. Code Ann., § 45-5-502, subd. (5) [“Consent is ineffective under this section if the victim is . . . less than 14 years old and the offender is 3 or more years older than the victim.”].)

The question presented here is whether the Montana convictions qualify as strikes in California. We now turn to the relevant provisions of California law to determine whether the Montana convictions qualify as strikes under California’s Three Strikes Law.

Applicable Law and Analysis

For purposes of California’s Three Strikes law (§ 667, subds. (b)-(i)), a prior strike is a conviction either for a violent felony, defined in section 667.5, subdivision (c), or for a serious felony, defined in section 1192.7, subdivision (c). (§ 667, subds. (b), (d)(1).) To qualify as a prior strike conviction, an out-of-state conviction must be for an offense that, if committed in California, would have included all of the elements of, and thus would have constituted, a serious or a violent felony in California. (People v. Warner (2006) 39 Cal.4th 548, 559 (Warner); § 667, subd. (d)(2) [“A prior conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison constitutes a prior conviction of a particular serious or violent felony if the prior conviction in the other jurisdiction is for an offense that includes all of the elements of a particular violent felony as defined in subdivision (c) of [s]ection 667.5 or serious felony as defined in subdivision (c) of [s]ection 1192.7.”].)

The prosecution has the burden of proving all of the elements of an alleged prior strike allegation, or other sentencing enhancement allegation, beyond a reasonable doubt. (People v. Miles (2008) 43 Cal.4th 1074, 1082 (Miles).) On appeal, we examine the entire record in the light most favorable to the judgment—specifically, the true finding on a sentencing enhancement allegation—to ascertain whether it is supported by substantial evidence. (Id. at p. 1083) That is, we determine whether any rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentencing enhancement beyond a reasonable doubt. (Ibid.)

In determining whether a prior conviction qualifies as a prior strike conviction, the scope of the trial court’s factfinding authority is limited to (1) the facts established by the fact of the prior conviction, and (2) the facts the defendant admitted as the basis of his or her guilty verdict or plea. (Gallardo, supra, 4 Cal.5th at p. 136.) “[A] court considering whether to impose an increased sentence based on a prior qualifying conviction may not determine the ‘nature or basis’ of the prior conviction based on its independent conclusions about what facts or conduct . . . supported the conviction. [Citation.] That inquiry invades the jury’s province [and the defendant’s Sixth Amendment right to a jury trial] by permitting the court to make disputed findings about ‘what a trial showed, or a plea proceeding revealed, about the defendant’s underlying conduct.’ (Descamps [v. United States (2013) 570 U.S. 254] at p. 269.) The court’s role is, rather, limited to identifying those facts that were established by virtue of the conviction itself—that is, facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as the factual basis for a guilty plea.” (Ibid., italics added.)

Section 1192.7, subdivision (c)(6), defines a serious felony as including a “lewd or lascivious act on a child under 14 years of age.” Thus, in California, committing a lewd or lascivious act on a child under 14 years of age in violation of section 288, subdivision (a), is a serious felony. (Warner, supra, 39 Cal.4th at pp. 556-557; People v. Murphy (2001) 25 Cal.4th 136, 141-149.)

First, we turn to the facts established by virtue of defendant’s conviction to the Montana offenses. In California, “[a] plea of guilty is an admission of every element of the offense charged and is a conclusive admission of guilt. [Citations]. Such a plea is the equivalent of a verdict of a jury. [Citation]. After a plea of guilty, it is unnecessary to take any evidence on any of the elements of the crime charged.” (People v. McDaniels (1958) 165 Cal. App. 2d 283, 284-285.) Thus, from the view of California law, defendant’s admission to violating the Montana statute amounts to an admission of every element of the offense charged including that he committed sexual assault on a person under 16 years of age at a time when the defendant was three or more years older than the victim and that the offense was committed without consent. (People v. McDaniels, at p. 284). Being under 14 years of age is not an element of the Montana offense, as it is under California section 288, subdivision (a), and thus was not admitted by defendant in pleading guilty to violating the Montana statute. Proving that a victim is under the age of 14 is simply one way of proving the element of lack of consent. Therefore, defendant’s plea of guilty to the Montana offense does not establish section 288, subdivision (a)’s requirement that the victim be under the age of 14 and cannot be the basis of determining that defendant’s Montana convictions constitute strikes in California. However, this determination does not end the inquiry.

As previously noted, under Gallardo, a court reviewing an out of state prior conviction to determine if it qualifies as a strike under California law, may also consider the facts the defendant admitted as the basis of his or her guilty verdict or plea. In this case, defendant declined to admit a factual basis under the authority of Alford, supra, 400 U.S. 25. An Alford plea “allows a defendant to plead guilty in order to take advantage of a plea bargain while still asserting his or her innocence.” (People v. Rauen (2011) 201 Cal.App.4th 421, 424).[3] Alford held that “while most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.” (Alford, at p. 37.) Citing Alford, defendant did not expressly admit a factual basis in this case. On the record before us, there is no evidence of how or whether the Montana court took a factual basis for the plea. Our concern, however, is what defendant admitted by virtue of his plea and what facts defendant admitted as the factual basis for the plea. On the record before us, we conclude that the defendant did not admit that his victims were under 14 years of age by virtue of his plea. Nor did he admit the victims’ ages as part of the factual basis for the plea. Thus, the section 288 priors were not proven to qualify as strikes in this case.

Retrial of a prior strike allegation is permissible where, as here, a true finding on the allegation is reversed on appeal for insufficient evidence. (People v. Barragan (2004) 32 Cal.4th 236, 259; People v. Strike (2020) 45 Cal.App.5th 143, 154.) On remand, the prosecution may adduce evidence, not previously presented, that defendant’s guilty plea to two counts of violating Montana Code Annotated section 45-5-502 (1993) “encompassed a relevant admission about the nature” of his Montana court convictions. (Gallardo, supra, 4 Cal.5th at p. 139; In re Scott (2020) 49 Cal.App.5th 1003, 1020-1021, review granted Aug. 12, 2020, S262716.)

V. DISPOSITION

The true finding on the two 1995 prior strike allegations based upon defendant’s convictions in Montana are reversed, and defendant’s sentence is vacated. The matter is remanded for a retrial of the two 1995 prior strike allegations, if the People elect to pursue a retrial, and for resentencing. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

I concur:

RAMIREZ

P.J.

[P. v. Kimball, Jr., E075186]

MENETREZ, J., Concurring.

I concur in the majority opinion in its entirety. I write separately to acknowledge that remand for retrial on the strike priors may be futile because, as the majority opinion explains, (1) the sentencing judge is limited to the facts that defendant admitted when he pled in Montana, (2) defendant did not admit any facts beyond the elements, and (3) the elements of the Montana crimes to which defendant pled do not constitute strikes under California law. (Maj. opn., ante, at pp. 10-12.) I also note that although People v. Barragan (2004) 32 Cal.4th 236, 259 allows retrial of an enhancement allegation when a true finding is reversed for insufficient evidence, the strike allegations in the present case have already been retried, and I am not aware of any authority that allows an indefinite number of repeated retrials. But because the original sentencing hearing predated People v. Gallardo (2017) 4 Cal.5th 120, the retrial from which the current appeal is taken was actually the first trial under the correct legal standard. I consequently do not object to remanding to give the People one last opportunity to try to carry what may be an impossible burden of proof.

MENETREZ

J.

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

[2] Although not relevant to our determination, we note that the offense of felony sexual assault may also be committed in Montana where the offender inflicts bodily injury upon the victim in the course of committing sexual assault. (Mont. Code Ann., § 45-5-502, subd. (3) (1993).)

[3] In California, such a plea is entered pursuant to People v. West (1970) 3 Cal.3d 595. “In In re Alvernaz (1992) 2 Cal.4th 924, 932 [citation], the court characterized a West plea as ‘a plea of nolo contendere, not admitting a factual basis for the plea.’ Such a plea, also referred to as an Alford plea, based on North Carolina v. Alford (1970) 400 U.S. 25, 37–38 [citation], allows a defendant to plead guilty in order to take advantage of a plea bargain while still asserting his or her innocence.” (People v. Rauen, supra, 201 Cal.App.4th at p. 424; see Lawrence v. Guyer, supra, 440 P.3d 1.)

Montana has codified the Alford decision. Its relevant statute provides as follows: “A defendant who is unwilling to admit to any element of the offense that would provide a factual basis for a plea of guilty may, with the consent of the court, enter a plea of guilty or may, with the consent of the court and the prosecutor, enter a plea of nolo contendere to the offense if the defendant considers the plea to be in the defendant’s best interest and the court determines that there is a factual basis for the plea.” (Mont. Code Ann., § 46-12-212 (2).)