P. v. Hays
Filed 4/18/13 P. v. Hays CA2/7
TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and
Respondent,
v.
MARCUS DESHONNE HAYS,
Defendant and
Appellant.
B236411
(Los Angeles County
Super. Ct. No. YA077539)
APPEAL from a judgment of the Superior Court of
County, James R. Brandlin, Judge. Reversed in part and remanded for further
proceedings.
Allison H. Ting, under appointment
by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Steven D. Matthews and Peggy Z. Huang, Deputy
Attorneys General, for Plaintiff and Respondent.
___________________________________
>
Marcus Deshonne
Hays was convicted by a jury of two counts of second degree robbery and two
counts of kidnapping with a special
finding he had personally used a firearm to commit the offenses.
proceeding the trial court found Hays had
suffered two prior convictions in Georgia
that qualified as serious felonies under California’s
“Three Strikes†law (Pen. Code, §§ 1170.12, subds. (a)-(d), 667,
subds. (b)-(i))
name="_ftnref2" title="">[2] and section 667,
subdivision (a)(1), and had served a separate
prison term for a felony conviction within the meaning of section 667.5,
subdivision (b). Hays was sentenced to
an aggregate state prison term of 69
years four months to life.
On
appeal Hays contends the trial court erred in finding one of the prior Georgia
convictions (for armed robbery) constituted a serious felony under California law. Hays also contends
he was improperly sentenced to both the one-year prior prison term enhancement
and the five-year serious felony enhancement for convictions involving the same
incident.
title="">[3] We reverse in part
and remand for further proceedings.
PROCEDURAL BACKGROUND
In addition to charging Hays with
two counts of robbery and two counts
of kidnapping, in an information filed March 15, 2011 the People alleged Hays
had suffered three prior serious felony convictions—one each for
assault—all with a conviction date of July 28, 1998 in Fulton County,
Georgia, and had served a prison term for those offenses as described in
section 667.5, subdivision (b). At the
bifurcated proceeding following Hays’s conviction, the People introduced properly authenticated
documents establishing Hays had, in fact, pleaded guilty to those offenses in
1998 and had been sentenced to concurrent terms of 20 years for each, 10 years
of which were served in the Georgia state penitentiary.
facts underlying the guilty pleas was proffered; a police report relating to
the incident, which contained inadmissible hearsay, was presented to the court
solely for its consideration in sentencing.
Following argument by counsel, the
trial court found the Georgia convictions for armed robbery and aggravated
assault to be true and qualified as prior serious felonies under the Three
Strikes law and section 667, subdivision (a)(1).
title="">[5]
Hays was sentenced as a third strike offender to an
aggregate state prison term of 69 years four months to life, calculated as 25
years to life for robbery (count 1), plus five years for the prior serious
felony enhancement, plus 10 years for the firearm-use enhancement and one
additional year for the prior prison term enhancement; and a consecutive term
of 25 years to life for robbery (count 3) plus three years four months for the
firearm-use enhancement. The court
stayed sentence on the two kidnapping convictions (counts 2 and 4) pursuant to
section 654.
DISCUSSION
1. The
Trial Court Erred in Finding Hays’s Georgia Conviction for Armed Robbery
Constituted a Serious Felony Under California Law
Robbery under California law is a serious felony
within the meaning of both the Three Strikes law and section 667, subdivision
(a)(1). Under section 211, “[r]obbery 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.†An essential element
of the crime is “the intent to permanently deprive the person of the
property.†(People v. Marshall (1997) 15 Cal.4th 1, 34; see
682, 688.)
In Georgia armed robbery is committed when a person “with
intent to commit theft, . . . takes property of another from the
person or the immediate presence of another by use of an offensive weapon, or
any replica, article, or device having the appearance of such weapon.†(Ga. Code Ann. §
16-8-41.)
Although the statutory language is quite
similar, Hays contends the trial court erred in finding his Georgia armed
robbery conviction qualified as a serious felony for sentence enhancement
purposes because the definition of the crime in Georgia is broader and may be
committed with a different, and lesser, intent than required in
California.
Section 667, subdivision (a)(1), provides for a
five-year sentence enhancement for each prior conviction for “any offense
committed in another jurisdiction which includes all of the elements of any
serious felony†under California law when the current
offense is also a serious felony. Under
the Three Strikes law a prior conviction from another jurisdiction constitutes
a strike if it is “for an offense that includes all of the elements of the
particular felony as defined in subdivision (c) of Section 667.5 or subdivision
(c) of Section 1192.7.†(§§ 667, subd.
(d)(2), 1170.12, subd. (b)(2).) Thus,
the out-of-state conviction “must involve conduct that would qualify as a serious
felony in California.†(People
v. Avery (2002) 27 Cal.4th 49, 53.)
“To make this determination, the court may consider the entire record of
the prior conviction as well as the elements of the crime.†(Ibid.) If the record does not sufficiently reveal
the facts of the prior offense, the court must presume the prior conviction was
for the least offense punishable under the foreign law. (People
v. Rodriguez (1998) 17 Cal.4th 253, 261-262; see People v. Trujillo (2006) 40 Cal.4th 165, 180 [“in determining
the nature of a prior conviction, the court may look to the entire record of
conviction, ‘but no further’â€].)
The People proved Hays’s Georgia offenses with records
showing the existence, date and statutory authority for his convictions. Hays does not challenge the trial court’s
finding his conviction for aggravated assault with a firearm is a serious
felony under California law. With respect to the armed robbery conviction,
however, other than the fact there were three victims and one of the principals
used a firearm, there was no information about the crime. Nonetheless, the Georgia conviction may be deemed a
serious felony if armed robbery in Georgia requires the same intent as
robbery in California.
(People v. Myers (1993) 5 Cal.4th 1193, 1199 [Under the “least
adjudicated elements†test, “only the foreign jurisdiction’s statutory or
common law definition of the offense may be considered to determine if the
offense would be a serious felony in California. Only the elements of the offense which must
be proved to sustain a conviction of the offense, are considered in deciding if
the offense ‘includes all of the elements of the particular felony as defined
under California law.’â€].)
As discussed, the intent to permanently deprive the
victim of his or her property is an element of robbery in California. In contrast, in Georgia a conviction for robbery is
proper even if the defendant intends only to temporarily deprive the victim of
property. (Ga. Code Ann. §
16-8-1
[to “deprive†is “(A)
To withhold property of another permanently or temporarily; or [¶] (B) To
dispose of the property so as to make it unlikely that the owner will recover
itâ€].) For example, in Smith v. State (Ga. Ct. App. 1984)
323 S.E.2d 257, 258 the defendant admitted he entered another’s premises to
find a battery to start his car, stating he merely intended to use the battery,
not to take it. In affirming the
conviction the Georgia appellate court quoted Official Code of Georgia Annotated
section 16-8-1, subdivision (A), to conclude that “‘deprive’ means without
justification†and “regardless of whether [the defendant] intended to take the
battery and withhold it permanently, his intent to take it for his own
temporary use without the owner’s authorization evinces an intent to commit a
theft.†(Smith, at p. 258.) Hays maintains, because Georgia’s definition of intent to
deprive is therefore broader than California’s, a robbery committed in Georgia may not be considered a
robbery in California.
The California Supreme Court, however, has held the
element of intent to “permanently[] deprive,†as derived from the common law,
is not inflexible or meant to be taken literally; it does not preclude
temporary takings, depending on the circumstances. (People
v. Avery, supra, 27 Cal.4th at pp. 55-56, 58) That is, “the intent to steal may be found
even though the defendant’s primary purpose in taking the property was not to
deprive the owner permanently of possession.â€
(Id. at p. 55.) Temporary takings that satisfy the intent
element include instances in which the defendant intended to permanently
appropriate the value of the stolen
property by selling it back to its owner, claiming a reward for “finding†the
property, returning the property to its owner for a “refund†or taking the
property “for so extended a period as to deprive the owner of a major portionâ€
of its use or enjoyment. (
satisfies the intent requirement by taking property with the intent to use it
and then abandoning it in circumstances making it unlikely the owner will
recover it. (Id. at p. 57.)
In sum, because proof of robbery in Georgia may be
based on an intent to temporarily deprive the victim of his or her property,
the least adjudicated elements of a Georgia armed robbery do not equate to
robbery within the meaning of section 211.
To be sure, the record of the out-of-state convictions may bridge any
gap between statutory definitions. Thus,
in People v. Riel (2000) 22 Cal.4th
1153, which involved two prior Washington state convictions for
burglary, the defendant had admitted at the time of his pleas he had entered a
store on each occasion and taken a bottle of liquor. (Id.
at p. 1205.) On appeal the
defendant argued, because the statutory definition of the requisite intent for
theft in Washington was either to permanently or to temporarily deprive, he may
well have intended in his Washington burglaries only to temporarily deprive the
stores of their property. (
Washington convictions contained substantial evidence from which
a reasonable trier of fact could find the defendant did not intend to take the
liquor only temporarily. (
intent when pleading to the offenses, “[o]ne normally takes liquor to drink or
otherwise to dispose of it, not merely to possess it temporarily.†(Id. at
p. 1206.) Here, unlike
sufficient underlying facts concerning the Georgia robbery to suggest the
nature of Hays’s intent. Thus, the
finding this offense constituted a serious felony for sentencing purposes must
be reversed.
title="">[6]
2.
The Prior Strike and Prior Serious
Felony Allegations May be Retried
There is no
prior conviction allegation in a noncapital sentencing proceeding. (People
v. Barragan (2004) 32 Cal.4th 236, 239 [retrial of strike allegation
permissible when trier of fact found the allegation to be true and appellate
court reversed that finding for insufficient evidence]; People v. Jenkins (2006) 140 Cal.App.4th 805, 816 [finding on
strike and § 667, subd. (a)(1), allegations based on out-of-state
conviction reversed for insufficient evidence; “these allegations may be
retired if the prosecutor obtains additional evidence regarding the Utah
robberies to establish that appellant used force or fear against a person with
a possessory interest in the property takenâ€]; see People v. Cortez (1999) 73 Cal.App.4th 276, 284.) Consequently we remand to permit the People
at a new trial to present admissible evidence establishing the Georgia robbery
conviction is a serious felony within the meaning of the Three Strikes law and section
667, subdivision (a)(1).
name="_ftnref7" title="">[7]
3.
Imposition of the One-year Prior Prison Term Enhancement
Whether Hays is ultimately sentenced as a second- or
third-strike offender, the question remains whether it is permissible to add to
his sentence a one-year prior prison term enhancement pursuant to section
667.5, subdivision (b), in addition to one or two five-year prior serious
felony enhancements under section 667, subdivision (a)(1), when all of the
offenses occurred during the same incident.
Hays argues under People v. Jones
(1993) 5 Cal.4th 1142 the court should strike the one-year prior prison term
enhancement.
In
five-year serious felony enhancement under section 667, subdivision (a)(1), and
a one-year section 667.5, subdivision (b), prior prison term enhancement
based on a single serious felony and resulting prison term. (People
v. Jones, supra, 5 Cal.4th at p. 1145.)
The Supreme Court concluded, when multiple statutory enhancements are
available for the same prior offense, one of which is a section 667,
subdivision (a), serious felony enhancement, only the greatest felony
enhancement may be imposed. Accordingly,
the Jones Court held the one-year
prior prison term enhancement should be stricken. (Jones,
However, the Jones analysis does not apply and imposition of both a five-year
serious felony enhancement and a one-year prior prison term enhancement is
permissible when multiple prior offenses were committed and provide an
independent basis for the separate enhancements—whether the separate offenses
occurred on a single occasion and were tried together, as in
32 Cal.App.4th 1033, or separately, as in People v. Gonzales (1993) 20 Cal.App.4th 1607, 1610-1611 and
Cal.App.4th 1026, 1040-1041. Because
Hays served a prior prison term for kidnapping/false imprisonment as a result
of his plea in the Georgia case, imposition of the one-year prior prison term
enhancement was proper whether or not the People establish on remand the armed
robbery conviction was a serious felony under California law.
The true findings as to the allegations that Hays’s
1998 Georgia armed robbery conviction is a conviction for a serious felony
within the meaning of the Three Strikes law and section 667, subdivision
(a)(1), are reversed, and Hays’s sentence is vacated. In all other respects the judgment is
affirmed. The matter is remanded for
further proceedings not inconsistent with this opinion.
PERLUSS,
P. J.
We concur:
ZELON,
J. JACKSON,
J.
According
to the evidence at trial, on January 15, 2012
Hays and
a confederate entered a check cashing store in Inglewood and took money, money
orders and checks from the two proprietors at gunpoint. Hays does not challenge the sufficiency of
the evidence to support the jury’s convictions.
Statutory
references are to the Penal Code unless otherwise indicated.
