Filed 10/31/18 P. v. McKinley CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

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Defendant Andrew Scott McKinley pleaded no contest to second degree burglary in case No. 16F6051, and to receipt of stolen property with an on-bail enhancement in case No. 16F3324. In return, he was promised the dismissal of the remaining counts in both cases and a court trial on an allegation that his 2002 conviction for first degree robbery in the state of Washington was a strike under California’s “Three Strikes” law. Based on certified documents presented to the trial court, the trial court found beyond a reasonable doubt that defendant’s 2002 Washington conviction was a strike under California law. The trial court sentenced defendant to an aggregate state prison term of nine years four months, which included doubling the terms on both current offenses for the strike.

Defendant now contends (1) in determining that his prior Washington conviction qualified as a strike, the trial court looked beyond the facts necessarily admitted as part of his plea; and (2) even if the trial court could consider information outside the admitted factual basis for the plea, there is insufficient evidence of intent to permanently deprive. Finding no merit in defendant’s contentions, we will affirm the judgment.

APPLICABLE LAW

California’s Three Strikes law increases a sentence when the defendant has been convicted of prior serious or violent felonies or strikes. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)[1] A qualifying strike includes “[a] prior conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison . . . if the prior conviction in the other jurisdiction is for an offense that includes all of the elements of a . . . serious felony as defined in subdivision (c) of Section 1192.7.” (§§ 667, subd. (d)(2), see 1170.12, subd. (b)(2).)

After sentencing occurred in this case, the California Supreme Court relied on Descamps v. United States (2013) 570 U.S. 254 [186 L.Ed.2d 438] (Descamps) in deciding People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo). Defendant acknowledges that Gallardo applies to this case. Disapproving its earlier holding in People v. McGee (2006) 38 Cal.4th 682, the California Supreme Court held in Gallardo: “[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 ‘realistically’ supported the conviction. [Citation.] That inquiry invades the jury’s province by permitting the court to make disputed findings about ‘what a trial showed, or a plea proceeding revealed, about the defendant’s underlying conduct.’ [Citation.] 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.” (Gallardo, at p. 136, fn. omitted; see id. at pp. 124-125.) The trial court in Gallardo had violated the defendant’s Sixth Amendment right to a jury trial by engaging in a form of factfinding about the nature or basis of the defendant’s assault guilty plea. (Id. at pp. 124-125, 136-137.)

The instant case involves a comparison of robbery under California law and Washington law. Under California law, robbery is “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.) Under Washington law, “[a] person commits robbery when he or she unlawfully takes personal property from the person of another 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.” (RCW 9A.56.190.)

Although the California statute does not expressly say so, California courts have held that the required intent for robbery includes the intent to permanently deprive the victim of the property taken, or to do so for such an extended period of time that the owner would be deprived of a major portion of the value or enjoyment of the property. (People v. Avery (2002) 27 Cal.4th 49, 54-57.) Washington law differs in this respect: the Washington courts have held that by amending the Washington statute in 1975 to delete express reference to the intent to permanently deprive the victim of property, the Washington legislature indicated it did not wish to require proof of that intent. (State v. Komok (1989) 113 Wash.2d 810, 816-817; State v. Crittenden (2008) 146 Wash.App. 361, 370; but see State v. Ralph (2013) 175 Wash.App. 814, 824-825.)

BACKGROUND

The People proffered to the trial court three certified documents from the Washington proceedings: an amended information, a “statement of defendant on plea of guilty to non-sex offense,” and a document captioned “judgment and sentence.” The People also proffered the original information, but we do not discuss it because the trial court only considered the amended information.

The amended information alleged the following offense: “COUNT I [¶] ROBBERY IN THE FIRST DEGREE [¶] The defendant, in the County of Cowlitz, State of Washington, on or about August 04, 2002, with intent to deprive the owner of property, did unlawfully take such personal property, to-wit: a backpack, cell phone, methamphetamine, which belonged to a person other than defendant, in the presence of D[.] B[.], against such person’s will, by use or threatened use of immediate force, violence, or fear of injury to such person or his property, and in the commission of or immediate flight therefrom, the accused was armed with a deadly weapon, to-wit: a large flashlight and/or a .38 caliber pistol; contrary to RCW 9A.56.190 and RCW 9A.56.200(a) and against the peace and dignity of the State of Washington.”

A “statement of defendant on plea of guilty to non-sex offense,” a form document with handwritten annotations, included the signatures of defendant, the attorneys, and the trial judge; the annotations apparently were made by defendant’s attorney. In connection with paragraph 4(b) regarding the charges and elements, an annotation stated: “Robbery 1[degree]: to unlawfully & permanently take personal property of another in their presence by use or threat of force or violence.” In connection with paragraph 7 regarding the plea, an annotation stated “count I[:] Robbery in the first degree” and specified that this was alleged in the amended information. And in connection with paragraph 11 regarding what made defendant guilty of the crime, the annotation stated: “On Aug[.] 4, 2002, [defendant] agreed to help a friend steal some drugs from D[.] B[.] & to hold a gun while he took the drugs from D[.]’s vehicle. He also hit a girl that was with D[.] with a flashlight. This happened in Cowlitz County, Wa.”

Another document captioned “judgment and sentence” stated that defendant pleaded guilty to robbery in the first degree (RCW 9A.56.190/9A.56.200(a)) as charged in the amended information.

The People’s points and authorities cited those documents as proof beyond a reasonable doubt that defendant’s crime amounted to robbery under section 211 and that he used a firearm during the commission of the offense, thus making it a strike. Defendant’s points and authorities, on the other hand, quoted the definition of robbery in the Washington statute and argued that the words “or the person or property of anyone” made the definition of robbery in Washington broader than that of section 211. Citing Descamps, defendant claimed the trial court could not look beyond the elements of the charged offense and had to conclude defendant’s prior conviction was for “the least serious form of the offense,” which would not count as a strike in California.

During the court trial on the prior, the prosecutor asserted that notwithstanding Descamps, supra, 570 U.S. 254, the trial court could “look at the entirety of the . . . documents” to find that defendant’s offense was a strike. First, the amended information specified that defendant took property from the victim by force or fear. Second, the annotations to the plea form specified that defendant intended “to unlawfully and permanently . . . take personal property of another in their presence by use of threat or force or violence.” Third, defendant’s description of the crime admitted the elements of aider and abettor liability under section 211. Defense counsel conceded that if the trial court could “consider all the information in these certified documents, that this was a strike in California.”

The trial court ruled: “I agree with [the prosecutor] that the Descamps case is primarily focused on right to trial, and so in going through all the cases suggesting what the judge . . . must do and can do versus . . . a fact-finder and knowing the law as a fact-finder, I’m determining that the Court can, in fact, look to the entire record [of] conviction in determining whether or not [defendant] has suffered a prior robbery charge that would be sufficient for him to have had a strike here in the State of California.” Based on the certified documents, the trial court found beyond a reasonable doubt that defendant’s offense was a strike under California law.

The trial court subsequently sentenced defendant to an aggregate state prison term of nine years four months, which included doubling the terms on both current offenses for the strike.

DISCUSSION

I

Defendant claims that in determining whether his prior Washington conviction qualified as a strike, the trial court improperly looked beyond the facts necessarily admitted as part of his plea. He also contends that even if the trial court could consider information outside the admitted factual basis for the plea, there is insufficient evidence of intent to permanently deprive. Although defendant did not assert these arguments in the trial court, we conclude they are not forfeited because he argues his sentence was unauthorized. If his prior conviction was not a strike, the trial court could not lawfully have doubled defendant’s sentence based on the prior. The record does not show any other way the trial court could have calculated the aggregate term it imposed. (Cf. People v. Scott (1994) 9 Cal.4th 331, 354.)

The documents presented to the trial court were within the scope of what a trial court may examine under Gallardo, supra, 4 Cal.5th 120. This is not a case where the trial court made factual findings based on a preliminary hearing, a probation report, or any other part of the record of conviction that did not establish the facts the defendant admitted by entering a plea. Thus, notwithstanding the court’s statement that it could look to “the entire record of conviction” -- a formulation that is too broad in light of Gallardo -- the trial court did not look beyond what Gallardo permits a trial court to consider.

The facts established by the documents before the trial court show, as the trial court found, that defendant admitted everything necessary to make his offense equivalent to first degree robbery as defined in section 211. Although the Washington robbery statute does not require the intent to permanently deprive the victim of property, the plea form entered by defendant and signed by the Washington trial court proved that defendant admitted that intent. And by stating that he held a gun while his codefendant took the victim’s property, he admitted using the required force or fear against the victim.

Defendant appears to rely on Descamps in arguing that the trial court could not rely on the definition of the offense stated in the plea form because it differs from the statutory elements of first degree robbery in Washington. In Descamps, supra, 570 U.S. 254 [186 L.Ed.2d 438], the United States Supreme Court held that a California prosecutor’s quick and gratuitous reference to “breaking and entering” in the course of a plea colloquy in a burglary case did not establish that the defendant’s offense was “a generic burglary conviction” for purposes of federal sentencing law, because California’s burglary statute does not include the element of unlawful entry. (Gallardo, supra, 4 Cal.5th at p. 132, citing Descamps, supra, 570 U.S. at pp. 259, 270-271 [186 L.Ed.2d at pp. 450, 457-458].) But here we do not have a mere gratuitous statement in a plea colloquy. We have a plea agreement signed by all parties, including the Washington trial judge, which describes the intent defendant admitted in entering his plea. Whether that intent precisely matches how the Washington courts have defined intent in the Washington robbery statute is immaterial.

To the extent defendant argues his own description of his offense in the plea form does not satisfy all the elements of section 211, the point fails because the trial court considered the totality of the admitted documents, which were sufficient. Defendant has shown no error in the trial court’s finding that his Washington prior conviction was a strike.

DISPOSITION

The judgment is affirmed.

/S/

MAURO, J.

We concur:

/S/

HULL, Acting P. J.

/S/

RENNER, J.