P. v. Sanders
Filed 1/16/13 P.
v. Sanders CA2/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
JUDY L.
SANDERS,
Defendant and Appellant.
B239250
(Los Angeles County
Super. Ct. No.
KA096048)
APPEAL
from a judgment of the Superior Court of
County. Wade D.
Olson, Temporary Judge. Reversed and
remanded with directions.
______
James
Koester, 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, Assistant Attorney General, Shawn McGahey Webb and
Esther P. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
______
>
Pursuant to stipulation, a felony complaint dated November 10, 2011
served as an information charging Judy L. Sanders with one count of
§ 487, subd. (d)(1)
title="">[1])
and specially alleging that she had a prior felony conviction for violation of
section 245, subdivision (a)(1), that qualified as a strike under the “Three
Strikes†law. On November 14, Sanders
pleaded no contest to the grand theft charge and admitted that she had a prior
strike conviction. In obtaining the plea
and admission, the prosecutor informed Sanders, “As a consequence of your plea
you’ll be sentenced to 32 months in state prison if the strike prior against
you can be proven. If it cannot, then
you’ll be sentenced to 16 months in county jail.†The trial court confirmed that Sanders would
receive a “maximum [sentence] of 16 months if the strike is not any good.†The court accepted Sanders’s plea and
admission, finding the prior strike conviction to be true “at this time,â€
and continued the matter to December 8 for sentencing so that the
prosecutor could “check [Sanders’s] prior.â€
The court noted that by December 8 the People “should have your strike
and we can do the sentencing.†The
Felony Advisement of Rights, Waiver and Plea Form indicates, “If the strike
allegation is true, [Sanders] will receive 32 months prison; if not true
[Sanders] to receive 16 months prison at 50%.â€
On
December 8, the trial court stated, “This was a disposition where you were
going to receive 32 months if the strike was valid and 16 months if it was
not. Your strike turns out to be
valid. So you’re looking at your
32-month sentence now.†After denying a
motion by Sanders to withdraw her plea, the court sentenced Sanders to a state
prison term of 32 months, consisting of the low term of 16 months for the grand
theft charge, doubled pursuant to the Three Strikes law.
Sanders
filed a notice of appeal, representing
that her appeal challenges the validity of the plea or admission and is based
on the sentence or matters occurring after the plea. She requested a certificate of probable
cause, stating, “I was sentenced under a non valid strike and should have
received fifty percent and I never was informed of another strike pertaining to
my case. My attorney deliberately
misrepresented me to get the no contest plea in order to get a[n] unreasonable
sentence[]. My strike from 1999 is not
valid.†The trial court denied Sanders’s
request for a certificate of probable cause.
According
to Sanders, although some convictions under section 245,
subdivision (a)(1), constitute strikes, such as when the defendant uses a
deadly weapon in committing the offense, the crime is not a strike when
committed by means of force likely to produce great bodily injury. Sanders contends that no admissible evidence
supports the determination that her prior conviction under section 245,
subdivision (a)(1), is a strike. She
requests that we vacate the true finding on the prior strike allegation and
remand the matter for the People to prove whether her prior conviction
constitutes a strike.
As
Sanders points out, the section 245, subdivision (a)(1), conviction may be
a strike, for example, if she personally inflicted great bodily injury on
the victim (see § 1192.7, subd. (c)(8)) or if she used a deadly
weapon in committing the offense (see § 1192.7, subd. (c)(23)). But an assault under section 245, subdivision
(a)(1), is not automatically a strike, such as when committed merely by means
of force likely to produce great bodily injury.
(People v. Delgado (2008) 43
Cal.4th 1059, 1065 [assault with a deadly weapon and assault in which the
defendant personally inflicts great bodily injury are serious felonies, but
“assault merely by means likely to
produce [great bodily injury], without the additional element of personal
infliction, is not included in the list of serious felonies†and thus “a
conviction under the deadly weapon prong of section 245(a)(1), is a
serious felony, but a conviction under the [likely to produce great bodily
injury] prong is notâ€].)
name="_ftnref3" title="">[3] Although the trial court at the sentencing
hearing stated that Sanders’s prior strike conviction “turns out to be valid,â€
no admissible evidence supports that determination. The People introduced no evidence at the sentencing
hearing to prove the section 245, subdivision (a)(1), offense constitutes a
strike, and the record contains no admissible evidence establishing a
strike. (Ibid. [prosecution’s burden to prove each element of a sentence
enhancement, including a prior strike allegation, beyond a reasonable doubt].)
The
People contend that Sanders’s admission of a prior strike conviction in
connection with her plea is evidence that her section 245, subdivision (a)(1),
offense is a strike. That admission,
however, expressly was conditioned on the People’s proof at the sentencing
hearing that the offense constitutes a strike.
It, therefore, cannot serve as evidence of a strike. The People also rely on notations in the
probation report in this matter that Sanders’s criminal history includes “two
prior felony convictions, one for a serious offense,†and that she has a
conviction for “ADW W/O FIREARM/GBI†to claim that the section 245, subdivision
(a)(1), offense involved a deadly weapon and thus constitutes a strike. But the probation report in this matter is
not part of the record of the section 245, subdivision (a)(1), conviction to
establish the offense qualifies as a strike.
(See People v. Delgado,
mere fact that a prior conviction occurred under a specified statute does not
prove the serious felony allegation, otherwise admissible evidence from the
entire record of the conviction may be examined to resolve the issueâ€];
838-839 [prosecution must prove “factual point relating to the prior crimeâ€
based on “evidence from the record of
the prior convictionâ€].)
Absent
evidence that the section 245, subdivision (a)(1), offense constitutes a
strike, we vacate the true finding on the strike allegation. (See People
v. Rodriguez (1998) 17 Cal.4th 253, 261-262 [least adjudicated
elements of alleged prior conviction control absent proof by the People of a
qualifying strike under § 245, subd. (a)(1)]; see also People v. Miles (2008) 43 Cal.4th 1074, 1083 [“if
the prior conviction was for an offense that can be committed in multiple ways,
and the record of the conviction does not disclose how the offense was
committed, a court must presume the conviction was for the least serious form
of the offenseâ€; “if the serious felony nature of the prior conviction depends
upon the particular conduct that gave rise to the conviction, the record is
insufficient to establish that a serious felony conviction occurredâ€].) We remand the matter
for a retrial on the strike allegation.
(People v. Monge,
conviction trial merely determines a question of the defendant’s continuing
status, irrespective of the present offense, and the prosecution may reallege
and retry that status in as many successive cases as it is relevantâ€].)
DISPOSITION
The
judgment is reversed, and the matter is remanded to permit the People
an opportunity to prove that Sanders’s prior conviction under section 245,
subdivision (a)(1), constitutes a strike.
If the People exercise that opportunity, and the trial court finds
the strike allegation true, the 32-month state prison term shall be
reinstated. If the court finds the
strike allegation not true, or if the People elect not to proceed, Sanders
shall be sentenced to 16 months in accordance with her plea.
NOT TO BE PUBLISHED.
ROTHSCHILD,
J.
We concur:
MALLANO, P. J.
CHANEY, J.
name="_ftn1" title="">[1] Statutory references are to the Penal Code.
People moved to dismiss the appeal based on the trial court’s denial of
Sanders’s request for a certificate of probable cause. Sanders opposed the motion on the ground that
her appeal raises only sentencing matters occurring after the plea and thus no
certificate of probable cause is necessary.
We denied the motion to dismiss.
Although the People reiterate in their brief that the appeal should be
dismissed for failure to obtain a certificate of probable cause, they present
no further argument on the issue that warrants a change to our denial of the
motion to dismiss.
