In re Brown
| Citation | 45 Cal.App.5th 699,259 Cal.Rptr.3d 56 |
| Decision Date | 25 February 2020 |
| Docket Number | E071401 |
| Court | California Court of Appeals Court of Appeals |
| Parties | IN RE Brandon Craig BROWN on Habeas Corpus. |
The People appeal from the trial court's orders granting respondent Brandon Craig Brown's (defendant) petition for writ of habeas corpus, vacating his sentence, and resentencing him to 16 years eight months in prison, which is eight years shorter than his original sentence. The trial court granted his writ petition because his strike for carjacking as a juvenile does not qualify as a strike under Welfare and Institutions Code section 707, subdivision (b) and Penal Code section 667, subdivision (d)(3). The trial court also concluded that defendant's trial counsel provided ineffective assistance of counsel (IAC) by not objecting to the strike during sentencing.
The People contend the trial court erred in granting defendant's writ petition because (1) defendant's juvenile carjacking adjudication qualifies as a strike under 2006 law, (2) the trial court erred in applying People v. Gallardo (2017) 4 Cal.5th 120, 226 Cal.Rptr.3d 379, 407 P.3d 55 ( Gallardo ), retroactively, (3) the trial court exceeded its jurisdiction by vacating the carjacking strike entered in Los Angeles (case No. VA 076709) and Orange County (case No. 03NF1824) cases, (4) defendant's trial counsel was not ineffective, because the record of conviction established defendant's carjacking adjudication qualified as a strike, and (5) defendant's delay in filing his writ petition prejudiced the People's ability to oppose it.
We conclude the trial court did not err in applying Gallardo retroactively and granting defendant's writ petition on the ground defendant's juvenile carjacking adjudication does not qualify as a strike. We therefore need not address the People's additional IAC challenge. We further reject the People's other objections and affirm the writ petition order and judgment.
On October 2, 2001, the People filed in Los Angeles County juvenile court (LAJC), a petition under Welfare and Institutions Code section 602 (case No. VJ22377). The People alleged in count 1 that on September 29, 2001, when defendant was 17 years old, he committed the crime of carjacking ( Pen. Code, § 215, subd. (a) ) by unlawfully taking the victim's car by force or fear. The People alleged in count 2 that on the same date as the count 1 offense, defendant committed the crime of unlawful driving or taking of a vehicle ( Veh. Code, § 10851, subd. (a) ) by unlawfully driving and taking a vehicle without the consent of the owner and with intent to permanently or temporarily deprive the owner of title to and possession of the vehicle.
On October 3, 2001, the court referred the LAJC matter to the probation department for a section 654 pre-plea report, with the matter continued to October 17, 2001. The Los Angeles County probation report dated October 17, 2001, summarized the facts of the carjacking offense. The report also included a victim statement, a statement of defendant's criminal history as a juvenile, defendant's personal history, interested party statements, a statement evaluating defendant's conduct under supervision, and a statement of the probation officer's analysis and recommended plan for defendant of placement with the California Youth Authority (CYA).
During the December 18, 2001, adjudication and disposition hearing, the LAJC sustained the juvenile petition, after defendant admitted both counts. The minute order states that the LAJC "read and considered the Probation Officer's Report filed herein and said report is admitted into evidence by reference." The LAJC ordered defendant detained in juvenile hall pending suitable placement. In April 2002, after the LAJC reviewed the probation report, the LAJC ordered defendant placed in a six-month camp program.
After defendant's release, defendant committed numerous crimes as an adult in March, April, and May 2003, in the counties of Los Angeles, Orange, San Bernardino, and Riverside.1
On August 8, 2003, defendant pled guilty and was convicted as an adult in Los Angeles County Superior Court (LASC) of two counts of second degree robbery committed in 2003 (LASC case No. VA 076709). The LASC sentenced defendant on October 20, 2003, to 12 years in prison, with the court finding defendant had one or more strikes. One of the alleged strikes was for the juvenile carjacking adjudication.
On April 27, 2004, defendant pled guilty and was convicted in Orange County Superior Court (OCSC) of two counts of second degree robbery committed in 2003 (OCSC case No. 03NF1824). On May 20, 2004, the OCSC sentenced defendant to two years in prison, with the court finding defendant had one or more strikes. One of the alleged strikes was for the juvenile carjacking adjudication.
In San Bernardino Superior Court (SBSC) case No. FSB039762, the People filed an information in July 2004, charging defendant as an adult with carjacking on March 27, 2003 ( Pen. Code, § 215, subd. (a) ; count 1), attempted second degree robbery on April 16, 2003, and May 15, 2003 ( Pen. Code, §§ 664, 211 ; counts 2, 8), and second degree robbery on May 1, 4, and 15, 2003 ( Pen. Code, § 211 ; counts 3-7, 9-10). The information further alleged as to count 1, that defendant personally used a deadly weapon ( Pen. Code, § 12022, subd. (b)(2) ). The information also alleged defendant suffered a prior serious and or violent felony conviction ( Pen. Code, §§ 667, subd. (d), 1170.12, subd. (b) ). The alleged strike was for the juvenile carjacking adjudication committed in Los Angeles, in 2001 (LAJC case No. VJ22377).
On May 12, 2006, defendant withdrew his not guilty plea in the SBSC case and entered a guilty plea to counts 1 through 8, and 10 of the information. Defendant also admitted the enhancement allegations. Defendant and his attorney, Earl Carter, signed a plea agreement form, agreeing to an aggregate sentence of 20 years eight months, to run consecutive to a four-year term imposed in LASC case No. VA076709, for a total prison term of 24 years eight months.
On June 5, 2006, the SBSC sentenced defendant on counts 1 through 8, and 10, to an aggregate term of 24 years eight months, in accordance with defendant's guilty plea on May 12, 2006, with the court finding defendant had two strikes ( Pen. Code, §§ 1170.12, subd. (c)(1), 667, subd. (e)(1) ). The court ordered count 9 dismissed pursuant to defendant's plea bargain. Defendant's aggregate sentence included a consecutive four-year prison term imposed in the LASC case.
By letter dated December 27, 2016, Jean Harper, correctional case records analyst of the California Department of Corrections and Rehabilitation (CDCR), notified the SBSC that a review of defendant's sentencing documents in the SBSC case revealed that the abstract of judgment and minute order may have contained numerous enumerated sentencing errors. Harper suggested that the trial court correct the sentence. In January 2017, the SBSC read and considered the CDCR letter and ordered that the abstract remain unchanged, as submitted.
By an interoffice memorandum dated February 1, 2017, San Bernardino County Deputy Public Defender Tammy Higgins stated that she was asked to review defendant's juvenile court file to determine whether his juvenile carjacking adjudication qualified as a strike. Higgins determined that it did not qualify as a strike because it was not a crime listed in Welfare and Institutions Code section 707, subdivision (b). Higgins noted defendant admitted violating Penal Code section 215, subdivision (a) (carjacking), but did not admit using a weapon when committing the crime, and there was no such allegation in the LAJC petition. Higgins further noted that defendant's plea agreement in the SBSC case showed that defendant pled to the entire complaint and admitted that he suffered a strike prior. In addition, defendant's sentence for the charges appeared to be miscalculated. Upon investigating the matter further, Higgins discovered the December 27, 2016, CDCR letter. Both the CDCR and Higgins concluded the court miscalculated defendant's sentence. The court, nevertheless, concluded there was no error and therefore did not amend the abstract of judgment.
Defendant thereafter moved to modify his sentence. The trial court ordered transcripts of the 2006 SBSC hearings but was informed that the transcripts were unavailable or no longer existed. The matter was continued and the court obtained a copy of the transcript of the June 5, 2006, sentencing hearing but was told there was no transcript of the May 12, 2006, plea hearing. After numerous continuances, in July 2017, the trial court heard defendant's motion to modify his sentence. During the hearing, the court and parties concluded defense counsel should proceed with seeking modification of defendant's sentence by filing a writ petition.
On January 5, 2018, defendant filed in SBSC a petition for writ of habeas corpus (case No. WHC1800004), alleging sentencing error was committed in SBSC case No. FSB039762. Defendant challenged the trial court's determination that his juvenile carjacking adjudication qualified as a strike. Defendant alleged the juvenile carjacking adjudication did not qualify as a strike because there was no showing or admission that the carjacking offense was committed with a dangerous or deadly weapon. Defendant also argued his attorney provided IAC by failing to challenge the strike. Defendant requested the trial court to vacate his plea, conviction, and resulting sentence, and release him or, alternatively, conduct an evidentiary hearing on the strike.
Defendant attached to his writ petition a computer printout...
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