Filed 7/1/26 P. v. Wyatt CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D087348
Plaintiff and Respondent,
v. (Super. Ct. No. FSB21001291)
HASAN WYATT,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino
County, David S. Cohn, Judge. Reversed with directions.
Laura Arnold, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Arlene A. Sevidal, Assistant Attorney General, Tami
Falkenstein Hennick and Collette C. Cavalier, Deputy Attorneys General,
for Plaintiff and Respondent.
MEMORANDUM OPINION
In March 2021, Hasan Wyatt stalked and harassed his ex-girlfriend.
She obtained a restraining order against him, but his behavior only
escalated. At the end of the month, after weeks of showing up at her
workplace unannounced, vandalizing her vehicle, following her, and
repeatedly calling her, Wyatt entered her workplace wearing a wolf mask.
He punched her in the face several times, knocking her to the ground. Then,
while holding one of her legs in the air to immobilize her, stomped on her
face. Her nose and orbital bones were broken. She could not see out of her
left eye for about one month.
The prosecution charged Wyatt with four felonies—attempted murder
(Pen. Code,1 §§ 664/187, subd. (a); count 1), stalking in violation of a
restraining order (§ 646.9, subd. (b); count 2), assault with force likely to
produce great bodily injury (§ 245, subd. (a)(4); count 5), and inflicting
corporal injury on a dating partner resulting in a traumatic condition
(§ 273.5, subd. (a); count 6)—as well as two misdemeanors—violating a
domestic violence restraining order (§ 273.6, subd. (a); count 4) and violating
such an order resulting in physical injury (§ 273.6, subd. (b); count 3). As to
each felony count, it was alleged that Wyatt personally inflicted great bodily
injury under circumstances involving domestic violence (§ 12022.7, subd. (e)).
The prosecution further alleged aggravating sentencing factors (§ 1170,
subd. (b)(2)) and two prior conviction enhancements—one prior strike (§§ 667,
subs. (b)-(i)/1170.12, subds. (a)-(d)) and one prior serious felony (§ 667, subd.
(a)). Before jury selection, the court granted Wyatt’s request to bifurcate trial
on the prior strike allegation.
1 Further undesignated statutory references are to the Penal Code.
2
During trial, when Wyatt decided to testify in his defense, he
successfully moved to preclude the prosecution from eliciting the nature
of his prior conviction (attempted murder) for impeachment purposes. The
parties then stipulated that Wyatt had “suffered a prior felony conviction out
of Riverside County, with the date of conviction of July 26th, 2007, in Court
Case No. RIF-128769.” The stipulation was presented to the jury just before
Wyatt took the stand. The jurors were later instructed that they could
consider the felony conviction only in evaluating the credibility of Wyatt’s
testimony.
The jury could not reach a verdict on the attempted murder count or
the great bodily injury allegation. The court declared a mistrial as to those
charges. The jury found Wyatt guilty on the remaining counts.
At the prosecution’s request, the court dismissed the charges on which
the jury could not agree. It then set a sentencing date. The prosecutor noted
that the aggravated sentencing factors needed to be addressed. Defense
counsel asserted “those have gone down the river and under the bridge”
because Wyatt did not waive his right to a jury trial on the factors, and the
jury was dismissed. The court agreed and affirmed they would “not be
dealing with aggravated factors” at sentencing.
The minute order of the sentencing hearing begins with the following
entries: “Action came on for Sentencing. [¶] Court has read and considered
Probation Officer’s Report. [¶] Off the record, Court and counsel confer
in chambers. [¶] Defense request for Count 2 sentence to be stayed or
concurrent is denied. [¶] As to Count 999. PC1170.12(A)-(D)-A: Prior Felony
Convictions, a Disposition of True – Court Finding (Priors) is entered. [¶]
As to Count 999. PC 667(B)-(I)-A: Prior Serious/Violent Felony, a
Disposition of True – Court Finding is entered. [¶] Formal arraignment
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for Pronouncement of Judgment is waived; no legal cause why Judgment
should not now be pronounced.” By contrast, the reporter’s transcript of the
sentencing hearing begins with the court confirming there was no legal cause
why judgment should not be pronounced.
Addressing Wyatt, the court stated “[w]e had a conference regarding
your case” and then sentenced him to eight years in prison: six years for the
corporal injury count—the midterm of three years doubled “by virtue of the
strike, which was found to be true”—and two years for the stalking count—
one-third the midterm of two years doubled. The remaining counts were
stayed (§ 654). The court declined to add the five-year prior serious felony
enhancement since it was “not legally proper in [this] case,” which counsel
agreed with.
DISCUSSION
Wyatt contends his Three Strikes sentence is unauthorized because the
prior strike allegation was never admitted or found true by the jury or court.
The Attorney General concedes the issue, and we accept the concession.2
A defendant has a statutory right to a jury trial on the issue of whether
he suffered an alleged prior conviction. (People v. Epps (2001) 25 Cal.4th 19,
25, citing §§ 1025, subd. (b) & 1158.) He may waive that right and submit to
a court trial or admit the truth of the prior conviction allegation. (§§ 1025,
subd. (a) & 1158.) Here, there is nothing in the record showing there was
any trial on the prior strike. After returning their verdicts on the substantive
offenses, the jurors were discharged without considering the strike.
2 The Attorney General primarily asserts that Wyatt forfeited his claim
by failing to support his argument with legal citations. While the premise
may be technically accurate, we decline to reject the claim on this basis given
the clear error.
4
The prosecutor later alerted the trial court that the aggravated sentencing
factors needed to be “address[ed],” but made no mention of the prior strike (or
the prior serious felony) at that time. Had he or defense counsel done so, the
court could have convened a new jury to try the prior conviction allegation.
(See People v. Saunders (1993) 5 Cal.4th 580, 595–596 [when the court
improvidently discharged the jurors before they decided prior conviction
allegations, and the defense failed to timely object, double jeopardy did not
bar trial of the allegations before a new jury].)
But, for whatever reason, the strike was not mentioned again until
sentencing, when the court doubled Wyatt’s sentence based on the strike,
which the court stated “was found to be true.” To be sure, there are cases in
which the reviewing court has determined the trial court impliedly found true
an enhancement allegation by imposing the enhancement at sentencing. But
in such cases, the trial court was at least presented evidence supporting the
allegation. (See, e.g., People v. Clair (1992) 2 Cal.4th 629, 691, fn. 17; People
v. Chambers (2002) 104 Cal.App.4th 1047.) The same is not true here.
While the prosecutor at one point represented that he had “the certified 969b
packet” for the prior, there is no indication he presented those documents,
or any other evidence, to the court. And although the minute order of
sentencing reflects a true finding by the court on the prior strike, we cannot
rely on those entries because there is no oral record of the court making those
findings. (See People v. Zackery (2007) 147 Cal.App.4th 380, 385–386.)
Moreover, we do not interpret Wyatt’s stipulation to having “suffered a
prior felony conviction” for impeachment purposes as an admission to having
suffered the strike. Critically, he did not admit to suffering a prior conviction
for the alleged serious and/or violent felony—attempted murder.
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Wyatt asks that we vacate his sentence and remand for resentencing
without the prior strike. The Attorney General points out, however, that
there is no constitutional or procedural bar precluding the prosecution from
retrying a prior strike allegation following appellate reversal for insufficient
evidence. (See People v. Barragan (2004) 32 Cal.4th 236, 239 [“constitutional
requirement of fundamental fairness, equitable principles of res judicata and
law of the case, and relevant statutory provisions” do not bar retrial of prior
strike allegation]; People v. Monge (1997) 16 Cal.4th 826, 829 [state and
federal prohibitions against double jeopardy do not bar retrial of a prior
conviction allegation in a noncapital case], affd. sub nom. Monge v. California
(1998) 524 U.S. 721.) Wyatt offers no reason why the prosecution should be
barred from retrial in this analogous context. We will therefore reverse the
judgment and remand to afford the prosecution an opportunity to retry the
prior strike allegation. Wyatt must be resentenced in any event.
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DISPOSITION
We reverse and remand for further proceedings in light of our opinion.3
DATO, J.
WE CONCUR:
MCCONNELL, P. J.
RUBIN, J.
3 In his opening brief, Wyatt also argued the trial court miscalculated
his presentence custody credit and the abstract of judgment needed to be
corrected to reflect that his corporal injury and stalking convictions were
not violent felonies. These claims are moot because the court issued an
amended abstract addressing these errors while this appeal was pending,
and Wyatt will be resentenced in light of this decision, leading to yet another
amended abstract. We note the court should clarify on remand whether the
aggravating sentencing factors and prior serious felony enhancement have
been dismissed.
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