People v. Valentine

THE PEOPLE, Plaintiff and Respondent, v. EDWIN LYNN VALENTINE, Defendant and Appellant.

B298709

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

November 19, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BA415000)

APPEAL from a judgment of the Superior Court of Los Angeles County, Mike Camacho, Judge. Affirmed.

Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Madeo and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.

____________________ Defendant and appellant Edwin Lynn Valentine appeals from a judgment entered following our remand for resentencing. In Valentine's prior appeal, we affirmed his two-count conspiracy conviction but remanded for the trial court to reconsider whether his 1986 assault conviction qualified as a strike in light of People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo). On remand, the trial court reviewed the underlying plea proceedings from the 1986 conviction, as well as the preliminary hearing transcript, and determined that the prior conviction was a strike. As a result, the trial court maintained the Three Strikes Sentence previously imposed.

Valentine now appeals from that judgment, contending that the trial court erred in relying on the preliminary hearing transcript, and the evidence was insufficient to support the trial court's conclusion that the 1986 conviction was a strike. We disagree. As we discuss, Valentine unambiguously pled guilty in 1986 to assault with a deadly weapon. Thus, even if the trial court erred in considering the preliminary hearing transcript—an issue we do not reach—its conclusion that the 1986 assault conviction was a strike was supported by substantial evidence. We therefore affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

Because this appeal involves only the question of whether a prior conviction qualifies as a strike, we do not summarize the trial evidence, which is described in our prior opinions. (People v. Vantuinen et al. (Nov. 30, 2018, B261581) [nonpub. opn.](Vantuinen II); People v. Vantuinen et al. (May 11, 2017, B261581) [nonpub. opn.] (Vantuinen I).)¹

1. Conviction and Sentence

In October 2014, a jury found Valentine guilty of one count of conspiracy to commit residential burglary (count 1; Pen. Code, §§ 182, 459),² and one count of conspiracy to receive stolen property (count 2; §§ 182, 496.) The conspiracy charges arose from Valentine's involvement in a burglary ring targeting residential homes whose occupants had placed "vacation holds" on their Los Angeles Times delivery service. (Vantuinen II, supra, B261581.)

In June 2015, the trial court found Valentine had suffered two prior strike convictions, namely a 1982 robbery conviction and a 1986 aggravated assault conviction in violation of section 245, subdivision (a)(1). The trial court therefore sentenced Valentine to two terms of 25 years to life in prison under the Three Strikes law for each count, but stayed sentence on count one pursuant to section 654.³

2. Prior appeals

On May 11, 2017, in an unpublished opinion, we affirmed Valentine's judgment of conviction but reversed his Three Strikes sentence, concluding the prosecution failed to establish that Valentine's 1986 assault conviction was necessarily for assault with a deadly weapon (which qualifies as a strike) as opposed to assault by force likely to cause great bodily injury (which does not).⁴ (Vantuinen I, supra, B261581.) In so concluding, we explained that the trial court engaged in impermissible fact-finding by relying on police reports and the preliminary hearing testimony from the 1986 conviction to conclude there was " 'ample evidence' " supporting an assault with a deadly weapon. (Ibid.) We therefore remanded the matter to the trial court for retrial, pointing out that Valentine, absent waiver, was entitled to a jury trial on the issue. (Ibid.)

The People petitioned for review. The California Supreme Court granted the People's petition, but deferred briefing pending resolution of Gallardo, supra, 4 Cal.5th 120. (Vantuinen II, supra, B261581.) After Gallardo was decided, the Supreme Court transferred the matter back to us with directions to vacate our prior opinion and reconsider the cause in light of Gallardo. (Vantuinen II, supra, B261581.)

On November 30, 2018, we vacated Vantuinen I and filed a second opinion in which we concluded that "Gallardo confirms that our original analysis was correct in all respects but one, i.e. the proper 'next steps' to be taken when a matter is remanded to correct the error present[ed] here." (Vantuinen II, supra,B261581.) Consistent with Gallardo, we determined the matter should be remanded to allow the trial court (as opposed to a jury) to determine the nature of the offense, but noted that the court's inquiry should be limited to "the record of the prior plea proceeding" and what Valentine "necessarily admitted in entering his 1986 plea." (Vantuinen II, supra, B261581.)

3. Hearing on remand

On remand, the trial court reviewed the plea colloquy from Valentine's 1986 assault conviction, observing that, unlike the defendant in Gallardo, Valentine had specifically agreed to allow the court that took his plea to consider the preliminary hearing transcript to determine if there was a factual basis for the plea. The court then reviewed the preliminary hearing transcript, and found that it established Valentine "used a bottle to toss at the victims, missing the victim [sic] and striking the windshield and shattering it. So the assault was with a deadly weapon." The trial court further noted that during Valentine's prior plea hearing, he pled guilty to the charges in the conjunctive, admitting both theories of liability under section 245, subdivision (a)(1)—that is, assault with a deadly weapon and assault by force likely to cause great bodily injury. Accordingly, the trial court again found that the 1986 assualt conviction was a strike, and thus it reimposed the original Three Strikes sentence.

DISCUSSION

Valentine contends the trial court engaged in impermissible judicial factfinding, in violation of his Sixth Amendment rights and California law, by considering the preliminary hearing testimony in determining the nature of his prior conviction, and the evidence was otherwise insufficient to prove the 1986 conviction was for assault with a deadly weapon.Therefore, Valentine urges, the true finding on the prior conviction must be reversed and the matter remanded. We conclude the evidence was sufficient.

1. Applicable legal principles

To qualify as a strike, a prior conviction must be either a violent felony listed in section 667.5, subdivision (c), or a serious felony listed in section 1192.7, subdivision (c). (§§ 667, subd. (d) & 1170.12, subd. (b).) The People are required to prove all elements of a sentence enhancement beyond a reasonable doubt. (People v. Miles (2008) 43 Cal.4th 1074, 1082; People v. Hudson (2018) 28 Cal.App.5th 196, 203.)

" 'On review, we examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt.' [Citation.]" (People v. Hudson, at p. 203, quoting People v. Delgado (2008) 43 Cal.4th 1059, 1067; People v. Miles, at p. 1083.) If the prior offense is one that could be committed in multiple ways and the record of conviction does not disclose how the offense was committed, we "presume the conviction was for the least serious form of the offense." (People v. Miles, at p. 1083; People v. Delgado, at p. 1066; People v. Cortez (1999) 73 Cal.App.4th 276, 280.)

In 1986, when Valentine pled guilty in the previous case, section 245, former subdivision (a)(1), provided that aggravated assault could be committed in two different ways—either by means likely to produce great bodily injury, or by use of a deadly weapon other than a firearm. (People v. Delgado, supra, 43 Cal.4th at p. 1063; People v. Hudson, supra, 28 Cal.App.5th atp. 203.) Only the latter form of the offense is a serious felony for purposes of the Three Strikes law. (Gallardo, supra, 4 Cal.5th at p. 23; Hudson, at p. 203.)⁵

Previously, California trial courts were allowed to determine whether a prior conviction qualified as a "strike" by looking to the entire record of conviction, including the preliminary hearing transcript. (Gallardo, supra, 4 Cal.5th at p. 125-126, 129-130; see People v. McGee (2006) 38 Cal.4th 682; People v. Saez (2015) 237 Cal.App.4th 1177, 1199 (Saez).) However, based on a line of United States Supreme Court precedents beginning with Apprendi v. New Jersey (2000) 530 U.S. 466 and ending with Descamps v. United States (2013) 570 U.S. 254 and Mathis v. United States (2016) 579 U.S. ___ [136 S.Ct 2243], our Supreme Court held in Gallardo that this procedure was no longer permissible.

In Gallardo, as here, the prior conviction at issue was a violation of section 245, former subdivision (a)(1). To determine whether the offense was for assault with a deadly weapon or assault with force likely to produce great bodily injury, the Gallardo trial court relied on the victim's testimony at the preliminary hearing that the defendant had used a knife. (Gallardo, supra, 4 Cal.5th at pp. 125-126.) After considering the federal authorities mentioned ante, Gallardo held that this was...