In re Richardson

• Citation: 126 Cal.Rptr.3d 720,11 Cal. Daily Op. Serv. 7246,2011 Daily Journal D.A.R. 8655,196 Cal.App.4th 647
• Decision Date: 28 September 2011
• Docket Number: No. C062684.,C062684.
• Parties: In re Jimmy RICHARDSON on Habeas Corpus.
• Court: California Court of Appeals

196 Cal.App.4th 647

126 Cal.Rptr.3d 720

11 Cal. Daily Op. Serv. 7246

2011 Daily Journal D.A.R. 8655

In re Jimmy RICHARDSON on Habeas Corpus.

No. C062684.

Court of Appeal, Third District, California.

June 13, 2011.

As Modified June 29, 2011.

As Modified on Denial of Rehearing July 12, 2011.

Review Denied Sept. 28, 2011.

Charles M. Bonneau, under appointment by the Court of Appeal, for Petitioner, Jimmy Richardson.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Michael P. Farrell, Senior Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Respondent, State of California.

NICHOLSON, Acting P.J.

Petitioner Jimmy Richardson seeks relief in habeas corpus from his prior strike conviction on the basis of ineffective assistance of counsel. He also asks us to recall the remittitur issued on the underlying appeal on the basis of judicial error. We deny the petition. Many of his claims were addressed earlier on appeal and are not cognizable on a petition for habeas corpus. Those claims that remain fail to show ineffective assistance of counsel or a valid basis for recalling the remittitur.

FACTS

After a jury convicted petitioner in 2004 of assaulting his wife with a deadly weapon (Pen.Code, § 245, subd. (a)), the court convened a bifurcated jury trial to determine whether petitioner's two prior felony convictions qualified as strikes for purposes of sentencing under the “Three Strikes” law. One of the alleged strikes was a 1992 conviction for evading a police officer and causing serious bodily injury. (Veh.Code, § 2800.3.)

For the evasion conviction to constitute a serious felony and thus a strike, the prosecution had to prove the serious bodily injury suffered by the victim constituted great bodily injury for purposes of the Three Strikes law, and that the victim who suffered the serious bodily injury from the evasion was not an accomplice. (Pen.Code, §§ 1192.7, subd. (c)(8), 1192.8.) In addition, the evidence supporting these factors had to come from the “record of conviction.” ( People v. Guerrero (1988) 44 Cal.3d 343, 355, 243 Cal.Rptr. 688, 748 P.2d 1150( Guerrero ).)

As to the first factor, the trial court determined the issue of whether serious bodily injury under Vehicle Code section 2800.3 constituted great bodily injury under the Three Strikes law was a question of law for it, and not the jury, to decide. The court determined the least adjudicated elements of the Vehicle Code section 2800.3 conviction proved there was serious bodily injury. It also determined serious bodily injury under Vehicle Code section 2800.3 as a matter of law rose to the level of “great bodily injury” within the meaning of the Three Strikes law.

As to the second factor, the trial court determined the jury would decide whether the victims of the 1992 evasion were also accomplices. The court noted the bare trial court record of the conviction did not show whether the injured victims were accomplices. That was because proving the victims were not accomplices was not an element of the evasion crime. Petitioner had pleaded no contest, so there was no factual record. The statement of facts in our unpublished opinion on the appeal from the 1992 conviction (C014739) was the only document that showed the victims were not accomplices. In that opinion, we stated petitioner had crashed his vehicle while fleeing law enforcement officers, injuring two occupants of a mobile home. Our statement was taken from petitioner's probation report. On hearsay grounds, the trial court excluded, incorrectly, our statement of facts from the evidence of whether the 1992 evasion victims were accomplices based on hearsay.

To prove the victims were not accomplices, the prosecution submitted as evidence the probation report in the 1992 evasion case. The report contained a statement by petitioner that on the night of his arrest, he had left a bar after consuming two or three beers and arguing with his brothers there. He was in a state of anger when he passed the California Highway Patrol (CHP) patrol vehicle. At that point, he thought it best to get to his home as quickly as possible as he feared the car he was driving would be impounded if he were stopped because he was driving without a valid license. He also had just purchased the car, and he had not yet registered it in his name or obtained insurance. As other law enforcement vehicles joined the pursuit, he became scared, but he continued in his flight for home. He lost control of the car and crashed into a mobile home. The prosecutor argued this statement was a de facto admission that the victims were not petitioner's accomplices.

The prosecution also introduced live testimony from the CHP officer who had pursued petitioner's car in 1992. The officer testified he saw only petitioner in the car during the pursuit and after petitioner crashed into a mobile home.

Based on this evidence, the jury determined the victims of the 1992 evasion were not accomplices, and that the prior strike allegations were true. Pursuant to the Three Strikes law, the court sentenced petitioner for the 2004 assault to state prison for 25 years to life, plus 14 years.

Petitioner appealed his 2004 conviction to this court. (C049430) He claimed the trial court erred when it (1) determined serious bodily injury under Vehicle Code section 2800.3 was the legal equivalent of great bodily injury under the Three Strikes law; (2) decided that it, instead of the jury, would determine whether the victims suffered great bodily injury; and (3) admitted the CHP officer's testimony to establish the 1992 evasion victims were not accomplices. Petitioner did not challenge admitting the 1992 probation report statement. In fact, petitioner acknowledged in his opening brief that a defendant's admission contained in a probation report was admissible to prove a strike. People v. Monreal (6th Dist.1997) 52 Cal.App.4th 670, 679, 60 Cal.Rptr.2d 737( Monreal ) had so held.

In an unpublished opinion filed August 18, 2006, we affirmed the judgment. We concluded the trial court correctly determined serious bodily injury under Vehicle Code section 2800.3 was the equivalent of great bodily injury for purposes of the Three Strikes law. We also concluded the trial court did not violate constitutional law when it, and not the jury, made that determination and decided the victims' injuries constituted serious bodily injury.

Additionally, we agreed with petitioner's argument challenging the admission of the CHP officer's live testimony. Guerrero prevented admitting the officer's testimony, as it was outside the record of conviction. However, we concluded the error was harmless, as petitioner's admission to the probation officer provided sufficient evidence establishing his victims were not accomplices. The jurors could deduce petitioner was alone from his statement not mentioning anyone else being in the car.

Petitioner sought review by the California Supreme Court, but on November 29, 2006, the high court denied his petition for review. Our court issued a remittitur on December 4, 2006.

One week later, the Supreme Court on December 11, 2006, issued an opinion casting a shadow on our ruling that petitioner's admission to his probation officer was admissible to prove a strike. In People v. Trujillo (2006) 40 Cal.4th 165, 51 Cal.Rptr.3d 718, 146 P.3d 1259( Trujillo ), the high court determined a defendant's postplea admission to a probation officer regarding a prior criminal action is not part of that action's “record of conviction,” and the statement cannot be admitted to establish the prior conviction qualified as a strike. (Id. at p. 179, 51 Cal.Rptr.3d 718, 146 P.3d 1259.)Trujillo overruled Monreal and another Court of Appeal decision that upheld using admissions in probation reports to prove a strike, People v. Mobley (4th Dist., Div.1, 1999) 72 Cal.App.4th 761, 796, 85 Cal.Rptr.2d 474.

About one year later, petitioner filed a habeas corpus petition with the trial court. Among other arguments, petitioner claimed Trujillo should apply to his case. The trial court issued an order to show cause limited to the issues of whether petitioner could argue on habeas that a change in law affected our decision on appeal, and if so, whether he was entitled to relief under Trujillo.

Following briefing by the parties on these issues, the trial court requested supplemental briefing. Petitioner had raised a claim of ineffective assistance of counsel, so the trial court sought briefing on that topic. It asked the parties to address whether petitioner's appellate counsel had a duty on the underlying appeal to brief the issue of whether Trujillo controlled petitioner's case or to seek a stay until Trujillo was resolved, and whether appellate counsel's failure to provide that briefing or seek a stay was prejudicial.

Following this additional briefing, the trial court ordered an evidentiary hearing to address whether competent appellate counsel should have been aware that Trujillo was pending while petitioner's case was on appeal, and whether appellate counsel should have sought a stay pending Trujillo's resolution.

At the hearing on the petition, attorney Emry Allen testified for petitioner as an appellate criminal practice expert. In Allen's opinion, a competent attorney handling petitioner's appeal to our court from his 2004 conviction and his petition for review to the Supreme Court should have argued the trial court erred in admitting petitioner's 1992 probation report admission to determine whether the 1992 evasion victims had been accomplices for purposes of applying the Three Strikes law. The Supreme Court had expressly left open the issue of whether admissions in probation reports were admissible to prove a strike in People v. Reed (1996) 13 Cal.4th 217, 230–231, 52 Cal.Rptr.2d 106, 914 P.2d 184( Reed ). Even though the Court of Appeal in Monreal subsequently determined admissions in a probation report are part of...