P. v. Ibrahim
Filed 1/10/14 P. v. Ibrahim CA4/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
HUSSEIN ADEN IBRAHIM,
Defendant and Appellant.
D062647
(Super. Ct. No.
SCD235716)
APPEAL from a
judgment of the Superior Court of San
Diego County, Amalia L. Meza, Judge.
Affirmed in part; reversed in part and remanded.
R. Clayton Seaman,
Jr., under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris,
Assistant Attorney General, Julie L. Garland, Assistant Attorney General,
Melissa Mandel and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff
and Respondent.
Defendant and appellant Hussein
Aden Ibrahim challenges his enhanced sentence under the three strikes law and under
conviction for burglary in the first degree constituted a strike prior and a
serious felony prior under California law.
The Attorney
General concedes that the record is insufficient to prove that Ibrahim's Minnesota burglary
prior constitutes a strike prior and a serious felony prior under California
law. However, the Attorney General
argues that a retrial on the prior conviction for sentencing purposes is
permissible and that the People should be allowed to present evidence from the
record of Ibrahim's Minnesota burglary conviction to establish that it was a strike prior and a
FACTUAL
AND PROCEDURAL BACKGROUND
On July 26, 2011, Ibrahim punched Abdirizak Said in the face and head, forcefully
and repeatedly. After the assault, Said
became unresponsive and was transported to a hospital emergency room. Said was hospitalized for his
week. Said was diagnosed with facial
contusions and mild to moderate brain injury.
A jury convicted Ibrahim of one count of assault by
means of force likely to produce great bodily injury and one count of battery
causing serious bodily injury and found true, with respect to both counts,
allegations that Ibrahim personally inflicted great bodily injury on the victim.
By his own
admission, Ibrahim's criminal record included 2005 convictions in Minnesota for "assault
in the second degree" and "first degree burglary." According to the complaint filed in the Minnesota
proceeding, the Minnesota assault and burglary convictions grew out of an incident in which
Ibrahim and others broke into the home of a person with whom Ibrahim had had an
earlier confrontation and assaulted the victim.
The information in the present case alleged, and the
trial court found, that both of Ibrahim's Minnesota convictions qualify as
strike priors, within the meaning of sections 667, subdivisions (b) through (i),
668 and 1170.12 and as serious felony priors within the meaning of sections
677, subdivision (a)(1), 668 and 1192.7, subdivision (c). The trial court sentenced Ibrahim to prison
for a total term of 25 years to life, plus 13 years, comprised of: (i) an
indeterminate term of 25 years to life on both counts due to the two strike
priors; (ii) three years for the great bodily injury enhancement, under section
12022.7, subdivision (a); and (iii) five-year enhancements for each serious
felony prior under section 667, subdivision (a)(1).
DISCUSSION
I
Ibrahim contends there is insufficient evidence in
the record to prove that his prior Minnesota
conviction for burglary in the first degree constitutes either a strike prior
or a serious felony prior. The Attorney
General agrees with Ibrahim, as do we.
offense committed in out-of-state jurisdictions, if punishable under California law,
subjects any subsequent crime committed by the same person within California to the
punishment "in the manner prescribed by law and to the same extent as if
that prior conviction had taken place in a court of this state." Section 668 qualifies priors from other
jurisdictions for recidivist criminal punishment.
Under California law, two statutory schemes increase the prison term for recidivists. First, a prior conviction from another
jurisdiction qualifies as a strike where the crime "includes all of the
elements of a particular violent felony as defined in subdivision (c) of
Section 667.5 or serious felony as defined in subdivision (c) of Section
1192.7." (§§ 667, subd.
(d)(2), 1170.12, subd. (b)(2).) Two or
more prior qualifying felonies permit the sentence to be enhanced to "an
indeterminate term of life imprisonment . . . ." (§ 667, subd. (e)(2)(A);
13 Cal.4th 497, 506.) Second, a prior
conviction from a foreign jurisdiction allows a five-year sentence enhancement
where the crime "includes all of the elements of any serious felony"
under California law. (§ 667, subd. (a)(1).) Thus, when a foreign offense includes all of
the elements of a California qualifying felony, a strike prior or a serious
felony prior will be established. (See
453; People v. Myers (1993) 5 Cal.4th
1193, 1200.)
However, there is "no guarantee the statutory
definition of the crime in the other jurisdiction will contain all the
necessary elements to qualify as a predicate felony in California." (People
v. Woodell, supra, 17 Cal.4th at p.
453.) Such is the case here. The Minnesota burglary
statute does not mirror California law and punishes a broader range of conduct than its California
counterpart.
The Minnesota Statutes section 609.582, subdivision 1
provides for burglary in the first degree, where "[w]hoever enters a
building without consent and with intent
to commit a crime, or enters a building without consent and
if the building is occupied or the burglar assaults a person within the
building. Intent to commit either a
felony or misdemeanor will satisfy the mens rea of burglary in the first degree
in Minnesota. However, California
requires not only the element of entering an inhabited dwelling but also the element
of "intent to commit grand or petit larceny or any felony" to prove first degree burglary. (§§ 459, 460, subd. (a), italics
added.) Thus, entering an inhabited
dwelling with the intent to commit a misdemeanor would not constitute first
degree burglary in California, but it may constitute first degree burglary in Minnesota.
Ibrahim contends
the record does not show the assault committed by him in Minnesota was a
felony and asserts that he only wrestled with a dweller and no weapons were
alleged to be found or used. The
Attorney General concedes that "the description in the complaint only
indicates that [Ibrahim] committed an assault; it does not include any additional
allegations that would necessarily constitute a felony assault in California. The record does not include the transcript
from the change of plea hearing or a written factual basis. Assuming the probable cause portion of the
complaint is otherwise admissible, those facts are also ambiguous as to whether
[Ibrahim] intended to commit felony assault or simply a misdemeanor."
Because, as the Attorney General concedes, the record
does not show that Ibrahim's Minnesota burglary conviction constitutes a violent
felony as defined in subdivision (c) of section 667.5 or a serious felony as
defined in subdivision (c) of section 1192.7, the trial court erred in finding Ibrahim's
Minnesota burglary conviction could be used as either a strike prior for
purposes of a 25-year-to-life indeterminate term or as a serious felony prior
for purposes of the five-year enhancement.
Thus, we must reverse the judgment and, as we explain, remand for
retrial of the allegations that the Minnesota burglary
was a strike and a prior serious felony.
II
Although the People
concede that Ibrahim's prior burglary conviction could not qualify as a strike
prior or a serious felony prior, they claim they are entitled to retry his
prior burglary conviction allegation and introduce further evidence to
establish a strike or a serious felony prior on remand. Ibrahim contends that a retrial to prove a
strike would violate his Fifth and Fourteenth Amendment due process rights and
double jeopardy protection and would also violate his Sixth Amendment right to
a speedy trial. We agree with the
Attorney General.
A.
Neither the federal
nor state constitutional double jeopardy clause precludes retrial on a prior
conviction allegation in the noncapital sentencing context. (Monge
v. California (1998) 524 U.S. 721, 734 (Monge
II); People v. Monge (1997) 16
Cal.4th 826, 845 (Monge I);
239.) The Fifth Amendment of the United
States Constitution provides that "[n]o person shall . . . be
subject for the same offense to be twice put in jeopardy of life or limb . . . ." This constitutional clause, known as the
double jeopardy prohibition, proscribes a second trial "for the same
offense." (U.S.
Const., 5th Amend.) However, the United
States Supreme Court has consistently ruled that this clause does not apply to
sentencing determinations nor does it preclude the courts from imposing a longer
sentence after retrial. (
15; North Carolina v. Pearce (1969)
395 U.S. 711, 720; Chaffin v. Stynchcombe
(1973) 412 U.S. 17, 23-24; United States
v. Difrancesco (1980) 449 U.S. 117, 120 (Difrancesco).) A primary
reason for this holding is the court's belief that sentencing in a noncapital
case does not carry the finality that attaches to an acquittal. (Difrancesco,
at p. 133;
In
under California law with three counts of marijuana-related crimes. The prosecution sought to prove a prior
serious felony conviction allegation for personal use of a deadly weapon within
the meaning of the three strikes law. (
The defendant waived his right to a jury trial on the sentence. (Ibid.)
The trial court found both sentencing
allegations true and imposed the enhancements. (Id. at
p. 831.) The Court of Appeal held the evidence
was insufficient to establish the defendant's prior serious felony and a remand
for a retrial on the allegation would violate double jeopardy prohibitions. (Ibid.)
The California Supreme Court reversed
the Court of Appeal's holding that double jeopardy prohibited retrial. (Id.
at p. 845.) The United States Supreme
Court agreed and reaffirmed the "'well-established part of our
constitutional jurisprudence'" (Difrancesco,
double jeopardy prohibition is inapplicable to sentencing proceedings (
conviction allegation does not place a defendant in second jeopardy for an "offense."
(Id.
at p. 728.) The Supreme Court reiterated
that the repeat-offender laws, which "'"penalize only the last
offense committed by the defendant"'" (Ibid., quoted from Nichols v.
United States (1994) 511 U.S. 738, 747), impose sentence enhancements only
on the current offense rather than an additional punishment for the previous
offense. (Monge II, at p. 728; see United
States v. Watts (1997) 519 U.S. 148.)
The "enhanced sentence imposed on a persistence offender thus 'is
not to be viewed as either a new jeopardy or additional penalty for the earlier
crimes' but as 'a stiffened penalty for the latest crime.'" (Monge
II, at p. 728, quoted from Gryger v.
Burke (1948) 334 U.S. 728, 732.)
In sum, retrial of Ibrahim's
Minnesota prior will not subject him to double jeopardy.
B.
[him] in the position of having to defend against evidence of his mental intent
eight years later in a different state" violates his constitutional due
process rights and right to a speedy trial.
We disagree.
In
Supreme Court overruled its previous holding in People v. Alfaro (1986)
42 Cal.3d 627, 636 that a prior conviction is "'"the judgment, and
matters necessarily adjudicated therein,"'" concluding instead that "in
determining the truth of a prior-conviction allegation, the trier of fact may
look to the entire record of the conviction." (People
v. Guerrero, supra, at p. 345.) The court also determined that "[t]o allow
the trier to look to the record of the conviction—but no further—is also fair: it effectively bars the prosecution
from relitigating the circumstances of a crime committed years ago and thereby
threatening the defendant with harm akin to double jeopardy and denial of
speedy trial." (
In People v. Myers (1993) 5 Cal.4th 1193, the Supreme
Court further held that the rule of People v. Guerrero, supra, 44 Cal.3d 343 applies to out-of-state convictions as well as
to California convictions. Because "[a] defendant whose prior
conviction was suffered in another jurisdiction is . . . subject
to the same punishment as a person previously convicted of an offense involving
the same conduct in California," "the trier of fact must be permitted
to go beyond the least adjudicated elements of the offense and to consider, if
not precluded by the rules of evidence or other statutory limitation, evidence
found within the entire record of the foreign conviction." (People v. Myers, supra,
at p. 1201.) Further, "the trier of
fact may consider the entire record of the proceedings leading to imposition of
judgment on the prior conviction to determine whether the offense of which the
defendant was previously convicted involved conduct which satisfies all of the
elements of the comparable California serious felony
offense." (Id. at p. 1195.)
The court in
of conviction" as including not only "trial court documents" but
also "appellate court documents at least up to finality of the judgment." (People v. Woodell, supra, 17 Cal.4th at p. 455, italics omitted.) There, the court explained that there is no
reason to bar all opinions, some of them probative, only because some appellate
opinions might not be sufficient to establish a foreign prior. (Ibid.)
As explained in People v. Abarca (1991) 233 Cal.App.3d 1347, "'the record of
the prior conviction'" means "all items that could have been used on
appeal of that prior conviction, specifically, any items considered a normal
part of the record under California Rules of Court, rule 33 or by which it could
be augmented pursuant to California Rules of Court, rule 12," and it at
least includes: "a change of plea form executed by the defendant in the previous
conviction (People v. Carr (1988) 204
Cal.App.3d 774, 778); the charging documents and no contest plea reflected in a
minute order (People v. Harrell
(1989) 207 Cal.App.3d 1439, 1444); a complaint and Tahl[
v. Smith, supra, 206
Cal.App.3d at p. 345); a reporter's transcript of the defendant's guilty plea
together with the information (People v. Batista (1988) 201 Cal.App.3d
1288, 1293); a probation report (People v. Garcia (1989) 216 Cal.App.3d
233, 237); and a preliminary hearing transcript (People v. Castellanos
(1990) 219 Cal.App.3d 1163, 1170.)" (People
v. Abarca, supra, at p. 1350.)
The
foregoing limitations on what may be presented in proving that a prior
conviction is either a strike or serious felony entirely obviate Ibrahim's due
process and speedy trial contentions.
(See People v. Guerrero,
their allegation that Ibrahim's Minnesota burglary
conviction is a strike and a prior serious felony. They, however, are limited to the available
record in that case.
(Ibid.)
DISPOSITION
Ibrahim's sentence is vacated. The prior serious or violent felony findings
under section 667, subdivision (a)(1) and the three strikes law are reversed,
and the cause is remanded for further proceedings consistent with the views we
have expressed. In all other respects,
the judgment is affirmed.
BENKE,
Acting P. J.
WE
CONCUR:
NARES,
J.
IRION,
J.
name="_ftn1" title="">[1] Further undesignated
statutory references refer to the Penal Code as it existed in 2011.
complaint stated in pertinent part:
"On July 29, 2005, St Cloud Police officers were dispatched to a
residence on 6th Avenue South, said area being within the City of St Cloud,
County of Stearns, State of Minnesota, in response to a report of a fight in
progress[.] Subsequent to their arrival,
St Cloud Officers Smith and Wilson entered into this residence, where upon,
they observed two males to be holding each other and wrestling[.] They were separated and subsequently, Hussein
Aden Ibrahim, DOB 01/02/85, (hereafter referred to
as the defendant), was taken into custody[.]
Statements were taken from individuals having knowledge of this
incident[.] Male A, (fully identified in
police reports), reported that, as he and two other individuals were walking
home, the individual now identified as the defendant approached him and asked
him for a cigarette[.] Male A reported
that he believed this individual pushed him and that he pushed him back and
that this individual then 'told me that he was gonna kill me or somethin[g.]' Subsequent to their arrival back at their residence,
Male A reported that 'I saw this guy with a bunch of people comin[g] into the
house[.]' He reports that he confronted
these males ('three, four guys') and told them to stop and that one of them
then attacked him (the defendant)[.] He
reports that he took the defendant down and wrestled with him and then the
police officers arrived[.] Male A also
reported that the defendant was the same male who had earlier asked him for a
cigarette[.]
"Male B also give a statement to police officers[.] In that statement, he also reported how the
individual now identified as the defendant had followed him and other
individuals up the driveway, asked Male A for a cigarette and after Male A told
him that he did not have a cigarette, got in Male A's face and Male A then pushed
him away[.] Male B stated that they then
went to the residence and went to bed[.]
Male B explained that approximately a half hour later, while he was
lying in bed, he heard profanity, heard his window being kicked in, and then
observed, coming through the back door, the same individual who had asked for
the cigarette[.]
"He
reported that 'so he just charged at me and started throwing punches and stuff[.'] Male B believed that he had been hit around
or behind his ear[.] Male B went on to
describe how Male A then came in and that the defendant then ended up with Male
A and that he then called the police[.]"
