P. v. Villareal

Filed 3/16/07 P. v. Villareal CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H029090

Plaintiff and Respondent, (Santa Clara County

Superior Court

v. Nos. CC243795, CC445068)

ADAM JOSEPH VILLAREAL,

Defendant and Appellant.

_____________________________________/

Defendant Adam Joseph Villareal appeals from a judgment of conviction entered after he pleaded guilty to various charges relating to the arson of a residence. We conclude that the law of the case doctrine precludes review of his claims regarding the use of his juvenile adjudication as a strike under the Three Strikes Law. We also conclude that Penal Code section 654 prohibited imposition of sentence on count six. Accordingly, the judgment is modified to reflect a stay on count six. In all other respects, the judgment is affirmed.

I. Statement of the Case

In August 2003, the Santa Clara County District Attorney filed an information in case number CC243795, which charged defendant with attempted murder (count one - Pen. Code, 664, 187), [1]arson of an inhabited structure (count two - 451, subd. (b)), driving under the influence of alcohol (count three - Veh. Code, 23152, subd. (a)), driving under the influence of alcohol with a blood alcohol level of .08 (count four - Veh. Code, 23152, subd. (b)), arson of the property of another (count five - 451, subd. (d)), and attempted arson of a structure or forest land (count six -  455). The information also alleged that defendant had suffered a prior conviction for driving under the influence and a prior juvenile strike adjudication for robbery ( 667, subds. (b)-(i), 1170.12).

In October 2003, the trial court sustained defendants demurrer to the allegation in case number CC243795 that his prior juvenile adjudication constituted a strike conviction under section 667, subdivision (d)(3).

In January 2004, while the Peoples appeal was pending, defendant pleaded guilty to arson of an inhabited structure (count 2), driving under the influence of alcohol with a blood alcohol level of .08 (count 4), arson of the property of another (count 5), and attempted arson of a structure (count 6). Defendant also admitted that he used an accelerant in connection with counts 2 and 5 and that he had a prior conviction for violating Vehicle Code section 23152.

In April 2004, the Santa Clara County District Attorney filed an information in case number CC445068, which charged defendant with conspiracy to commit a violation of sections 4573, 4573.9 and 4574 ( 182, subd. (a)(1)) with one overt act, and bringing or sending a firearm, explosive, or deadly weapon into jail ( 4574, subd. (a)). The information also alleged that defendant had suffered a prior conviction for arson of an inhabited structure ( 451, subd. (b)) within the meaning of sections 667, subdivisions (b) through (i), and 1170.12.

In June 2004, defendant pleaded guilty to the conspiracy count and admitted the prior strike conviction allegation in case number CC445068.

In October 2004, this court concluded that the trial court erred in case number CC243795, when it found that defendants prior juvenile adjudication was not a felony conviction for purposes of the Three Strikes Law. Accordingly, we reversed the order sustaining the demurrer.

In January 2005, the trial court set aside its order sustaining the demurrer in case number CC243795. Following a trial, the trial court found the prior strike conviction allegation to be true. The trial court then sentenced defendant to 11 years in state prison.

II. Statement of Facts[2]

At approximately 3:15 a.m. on March 28, 2002, Marianne Antuzzi, who had been sleeping in her home, heard a loud crash. When she looked outside, she saw that her patio furniture was on fire. After she extinguished the fire, she reset her house alarm. Shortly thereafter, she heard someone trying to open her back door and she called the police.

When the police arrived, they saw an individual, later identified as defendant, fleeing the scene in a car. The police eventually arrested defendant, who was intoxicated. After searching defendants car, officers found a Bic lighter, gloves, and a bottle of rum. The gloves smelled like an accelerant.

Meanwhile, other officers at the scene observed that the side exit door to Antuzzis home was on fire. An officer extinguished this fire. Fire investigators later concluded that four separate fires had been intentionally set. A patio table, an umbrella, and a tarp had been scorched. The south side of Antuzzis home near the door had sustained structural damage due to the fire. The east exterior side of the home had charring to the fence. There was charring and burning to a large planter near an exit door on the north side of the home. Fingerprints taken from a matchbook at the scene matched those of defendant.

Defendant was Antuzzis daughters former boyfriend. Three or four days prior to the incident, defendant spoke with Antuzzis daughter. When he learned that Antuzzi had kicked her daughter out of her home, he became angry with Antuzzi. On the night of the incident, he drank beer and rum with a friend and eventually fell asleep. When he awoke, he was drunk and decided to go to Antuzzis house. While he was obtaining gas for his friends vehicle, he saw lighter fluid and thought about setting a fire at Antuzzis home. He wanted her to feel a loss and to wake up in the morning and see the burn marks.

III. Discussion

Defendant contends: (1) the trial court erred in using a juvenile adjudication as a strike, because robbery was not enumerated under Welfare and Institutions Code section 707, subdivision (b); and (2) the use of the prior juvenile adjudication as a strike violated his jury trial rights. We conclude that the law of the case doctrine precludes review of these issues.

Under the law of the case doctrine, when an appellate court states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout [the cases] subsequent progress, both in the lower court and upon subsequent appeal. . . . Absent an applicable exception, the doctrine requir[es] both trial and appellate courts to follow the rules laid down upon a former appeal whether such rules are right or wrong. As its name suggests, the doctrine applies only to an appellate courts decision on a question of law; it does not apply to questions of fact. (People v. Barragan (2004) 32 Cal.4th 236, 246, internal citations and quotation marks omitted.)

In People v. Villareal (Oct. 21, 2004, H026714) [nonpub. opn.] (Villareal I), this court considered the issue of whether the trial court could use defendants juvenile adjudication of robbery as a strike. We summarized the relevant principles of law: Penal Code section 667, subdivision (d)(3) states the four requirements for a juvenile adjudication to qualify as a strike under the Three Strikes Law. It provides: (A) The juvenile was 16 years of age or older at the time he or she committed the prior offense. [] (B) The prior offense is listed in subdivision (b) of Section 707 of the Welfare and Institutions Code or described in paragraph (1) or (2) as a felony. [] (C) The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law. [] (D) The juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code. [] At issue in the case before us is whether paragraph (D) requires that there be an adjudication for an offense that is listed in Welfare and Institutions Code section 707, subdivision (b) at the time of the prior adjudication or at the time of the current offense. [] The Three Strikes Law was enacted in 1994. (Pen. Code, 667.) As originally enacted, Penal Code section 667, subdivision (h) provided: All references to existing statutes in subdivisions (c) to (g), inclusive, are to statutes as they existed on June 30, 1993. Thus, references in Penal Code section 667, subdivision (d)(3)(B) and (D) to offenses listed in subdivision (b) of Section 707 of the Welfare and Institutions Code were to those offenses listed in Welfare and Institutions Code section 707, subdivision (b) as of June 30, 1993. [] On March 8, 2000, Proposition 21 became effective. It deleted the words while armed with a dangerous or deadly weapon from subdivision (b)(3) relating to robbery. Thus, simple robbery is now listed as an offense in Welfare and Institutions Code section 707, subdivision (b). Proposition 21 also added Penal Code section 667.1, which states: Notwithstanding subdivision (h) of Section 667, for all offenses committed on or after the effective date of this act, all references to existing statutes in subdivisions (c) to (g)), inclusive, of Section 667, are to those statutes as they existed on the effective date of this act, including amendments made to those statutes by this act. (Villareal I, supra, at pp. 3-4.) Relying on our prior decision in People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, this court held that defendants prior juvenile adjudication of simple robbery constituted a strike because it was listed as an offense in subdivision (b) of Welfare and Institutions Code section 707 after the passage of Proposition 21. (Villareal I, supra, at p. 4.) Since these legal principles were necessary to our prior decision, defendant may not now seek reconsideration of this issue.

In Villareal I, we also considered and rejected defendants argument that his prior juvenile adjudication could not be used as a strike, because he did not have the right to a jury trial in the juvenile proceeding. Relying on our prior decisions in People v. Lee (2003) 111 Cal.App.4th 1310 and People v. Andrades, supra, 113 Cal.App.4th at pp. 830-834, this court held that the use of his prior juvenile adjudication could be used to enhance his sentence under the Three Strikes Law, because the requisite procedural safeguards were in place during the prior proceedings. (Villareal I, supra, at p. 5.) These legal principles were also necessary to our decision in Villareal I, and thus we must adhere to them in the present appeal.

Defendant asserts, however, that he may raise these contentions, because they fall within the unjust decision exception to the law of the case doctrine.

The law of the case doctrine will not be adhered to where its application will result in an unjust decision, e.g., where there has been a manifest misapplication of existing principles resulting in substantial injustice, or the controlling rules of law have been altered or clarified by a decision intervening between the first and second appellate determinations. (People v. Stanley (1995) 10 Cal.4th 764, 787, internal citations and quotation marks omitted.)

Defendant contends that this courts holdings in Andrades and Villareal I did not follow the rule set forth in People v. Garcia (1999) 21 Cal.4th 1. Garcia held that a prior juvenile adjudication qualified as a strike only if the defendant was adjudged a ward based on his or her commission of at least one offense listed in Welfare and Institutions Code section 707, subdivision (b). (Id. at p. 13.) Defendant reasons that his prior adjudication did not qualify as a strike under Garcia, because he committed simple robbery, which was not listed as an offense in section 707, subdivision (b) in 1999. As we explained in Villareal I, [t] his court rejected the same contention in Andrades: Importantly, Garcia was decided in 1999, before the passage of Proposition 21 and the enactment of Penal Code section 667.1. The Garcia court did not have occasion to consider whether the requirement of paragraph (D) that the prior juvenile adjudication include a Welfare and Institutions Code section 707, subdivision (b) offense was met if the offense in question was added to Welfare and Institutions Code section 707, subdivision (b) after the adjudication occurred. Therefore, Garcia does not resolve the issue presented here. (Andrades, supra, 113 Cal.App.4th at p. 828.) (Villareal I, supra, at pp. 4-5.) We continue to agree with this analysis.

Defendant also argues that the use of his juvenile adjudication as a strike violated the rules outlined in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Shepard v. United States (2005) 544 U.S. 13, [125 S.Ct. 1254] (Shepard). We disagree.

In People v. Lee, supra, 111 Cal.App.4th 1310, 1316, this court held that the procedural safeguards in juvenile proceedings were sufficient to ensure a prior adjudications reliability, and thus satisfied the concerns of the Apprendi court. Neither the Blakely nor the Shepard decision persuades us to reach a different conclusion. In Blakely, the court determined that the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. (Blakely, supra, 542 U.S. at p. 303.) At issue in Shepard was whether a sentencing court can look to police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted, and supported a conviction for, generic burglary. (Shepard, supra, 125 S.Ct. at p. 1257.) The Shepard court held that the sentencing court determining the character of an admitted burglary is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented. (Ibid.) Neither Blakely nor Shepard decided the issue of whether a juvenile adjudication is sufficiently similar to a criminal conviction to fall within the exception for prior convictions under Apprendi or whether it is subject to the constitutional right to a jury trial. Thus, the unjust decision exception to the law of the case doctrine is inapplicable.

Defendant next contends that the trial court violated the prohibition against multiple punishment under section 654 when it imposed a nine-year term on count two (arson of an inhabited dwelling), and concurrent terms on counts five (arson of property of another) and six (attempted arson of a structure).

Section 654 provides in relevant part: An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. ( 654, subd. (a).) Thus, [s]ection 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. (People v. Deloza (1998) 18 Cal.4th 585, 591.) Whether multiple offenses are incident to one objective depends on the intent and objective of the actor. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) The trial courts determination that a defendant maintained multiple criminal objectives is a question of fact which must be upheld if supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730.) Where a term is prohibited under section 654, the proper procedure is to impose and stay sentence. (People v. Dominguez (1995) 38 Cal.App.4th 410, 420.)

The People argue that each act of arson or attempted arson indicated a separate intent to do violence and increased the danger to the victim and her neighbors. We do not agree that defendant entertained multiple objectives. By setting fire to various locations at the victims resident, defendant acted with a single intent and objective, that is, to set fire to the residence. Thus, since both counts two (arson of an inhabited dwelling) and six (attempted arson of a structure) were part of an indivisible course of conduct, the trial court erred in failing to stay sentence on count six. However, not only did defendant set fire to various portions of her house, he also set fire to patio furniture, a planter, and a garbage can. Thus, there was substantial evidence to support the trial courts finding that defendant entertained multiple objectives, that is, to set fire to an inhabited dwelling as well as personal property. Accordingly, the trial court did not err in imposing sentence for both counts two and five.

III. Disposition

The judgment is modified to reflect a stay on count six. In all other respects, the judgment is affirmed.

_______________________________

Mihara, J.

I CONCUR:

_______________________________

Bamattre-Manoukian, Acting P.J.

McAdams, J.,

I concur in the judgment, but I write separately to note my continuing disagreement with the majority view in People v. Lee (2003) 111 Cal.App.4th 1310, as expressed in Villareal I.

___________________________

McAdams, J.

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

[2] The statement of facts is based on the probation officers report.