People v. Billie CA2/6 ( 2020 )

Filed 11/25/20 P. v. Billie CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE OF THE STATE 2d Crim. No. B297579
OF CALIFORNIA, (Super. Ct. No. 18CR06315
(Santa Barbara County)
Plaintiff and Respondent,
v.
ROBERT LEE BILLIE,
Defendant and Appellant.
Robert Lee Billie appeals the judgment entered after a jury
convicted him of assault by means of force likely to produce great
bodily injury (Pen. Code,1 § 245, subd. (a)(4)). In a bifurcated
proceeding, the trial court found true allegations that appellant
had a prior 2004 conviction for the federal offense of assault
resulting in serious bodily injury (18 U.S.C.S. § 113, subd. (a)(6))
that qualified as a strike (§§ 667, subds. (b) - (i), 1170.12, subds.
All statutory references are to the Penal Code unless
1
otherwise stated.
(a) - (d)) and a prior serious felony (§667, subd. (a)). Appellant
was sentenced to two years in state prison (one-third the
midterm doubled for the strike prior), to be served consecutively
to the sentences previously imposed in two other cases, resulting
in an aggregate term of 19 years and 4 months.2 Appellant
contends the court erred in finding that his prior federal
conviction of assault resulting in serious bodily injury qualified
as a strike and prior serious felony under California law. He also
asserts that his appointed counsel provided constitutionally
ineffective assistance by failing to ask the court to exercise its
discretion to strike the prior serious felony enhancement imposed
on the principal term in case number 143654. We affirm.
2 In 2015, in case number 1473654, a jury convicted
appellant of assault with a deadly weapon (§ 245, subd. (a)(1))
and found true an allegation that he personally inflicted great
bodily injury in committing the offense (§ 12022.7, subd. (a)). In
a bifurcated proceeding, the court found that appellant had a
prior strike conviction (his 2004 federal conviction of assault
resulting in serious bodily injury) that also qualified as a serious
felony (§§ 667, subds. (a)(1), (b) - (i), 1170.12, subds. (a) - (d)).
The court sentenced him to 16 years in state prison, consisting of
the upper term of four years for the assault doubled for the strike
prior, plus three years for the section 12022.7 enhancement, plus
five years for the prior serious felony conviction. In case number
1445369, appellant was convicted of false impersonation of
another (§ 529) and prior strike and serious felony allegations
were found true based on the same 2004 federal conviction of
assault resulting in serious bodily injury. Appellant was
sentenced to a consecutive term of one year and four months, i.e.,
one-third the midterm doubled for the strike prior.
2
FACTS AND PROCEDURAL HISTORY
On October 9, 2014, while in county jail awaiting trial in
his two prior cases, appellant punched his cellmate Malik
Rasheed in the head with his fist. Rasheed lost consciousness as
a result of the assault and suffered wounds that required 10
staples and 12 stitches.
Appellant was subsequently charged in an information
with assault by means of force likely to produce great bodily
injury. The information also alleged that appellant had a prior
federal conviction for assault resulting in serious bodily injury
(18 U.S.C.S. § 113, subd. (a)(6)) that qualified as a prior strike
and serious felony conviction. Appellant represented himself at
trial and waived his right to a jury trial on the prior conviction
allegations.
At the court trial on the prior conviction allegations, the
prosecution presented the indictment from the United States
District Court of Arizona charging appellant with assault
resulting in serious bodily injury and assault with a dangerous
weapon (18 U.S.C.S. § 113, subd. (a)(3)), appellant’s guilty plea
agreement, the court minutes, and the judgment of conviction.
In pleading guilty to the charge of assault resulting in
serious bodily injury, appellant agreed and admitted “that if [the]
matter were to proceed to trial the United States could prove . . .
beyond a reasonable doubt” that he “intentionally struck or
wounded the victim” and that “as a result of [appellant’s] action,
the victim suffered serious bodily injury.” Appellant also
admitted the following factual basis for his plea: “On or about
July 31, 2004, in the District of Arizona, within the confines of
the Navajo Indian Reservation, [appellant] was at the home of
Nathaniel Scott, located in Saint Michaels, Arizona. Victim
3
Robert Day arrived at the house and told Mr. Scott that
[appellant] should leave because of an earlier incident. When
[appellant] found out that victim Robert Day wanted him to
leave, [appellant] approached victim outside the residence and an
altercation ensued. Then [appellant] stabbed Day with a knife.
[Appellant] then fled in a vehicle. Day had numerous wounds
from the stabbing including a punctured lung, which defendant
admits constitutes serious physical injury. [Appellant] also
admits he used a knife in the assault.”
The trial court asked appellant, who was representing
himself, if he had any arguments as to why his prior assault
conviction would not qualify as a strike. Appellant replied, “No,
the defendant submits.” The court proceeded to find, “after
reviewing the elements of the federal offense . . . , that [it] would
qualify as a strike offense under California law.” The court also
found that appellant used a deadly and dangerous weapon in
committing the assault as contemplated in section 12022,
subdivision (b)(1), and personally inflicted great bodily injury
upon the victim within the meaning of section 12022.7,
subdivision (a), such that the offense qualified as serious felony.
Appellant was represented by counsel at sentencing. The
court sentenced appellant to two years in state prison and
ordered the sentence to run consecutive to appellant’s sentences
in the prior cases.
DISCUSSION
I.
Appellant contends the trial court violated his rights under
the Sixth and Fourteenth Amendments of the United States
Constitution by finding that his 2004 federal conviction of assault
resulting in serious bodily injury (18 U.S.C.S. § 113, subd. (a)(6))
4
qualifies as a strike and serious felony under California law. We
are not persuaded.3
Under the Three Strikes law, a prior conviction for a
“strike” offense subjects a defendant to increased punishment.
(§§ 667, subd. (b), 1170.12, subd. (a).) “‘In order for a prior
conviction from another jurisdiction to qualify as a strike under
the Three Strikes law, it must involve the same conduct as would
qualify as a strike in California.’” (People v. Woodell (1998) 17
Cal.4th 448, 453.) In Apprendi, the United States Supreme
Court held that “[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” (Apprendi, supra, 530 U.S. at
p. 490.)
In People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo), our
Supreme Court explained that “‘[i]n determining the truth of an
alleged prior conviction when . . . the necessary elements of that
conviction do not establish that it is a serious felony, and thus
subject to California’s Three Strikes law, the trier of fact must
3 We reject the People’s claim that appellant forfeited his
claim by failing to raise it in the trial court. As we shall explain,
appellant claims that the court’s alleged error resulted in an
unauthorized sentence under Apprendi v. New Jersey (2000) 530
U.S. 466 [147 L.Ed.2d 435] (Apprendi) and its progeny. “‘If a trial
court imposes a sentence unauthorized by law, a reviewing court
may correct that sentence whenever the error is called to the
court’s attention.’ [Citation.] ‘[A] sentence is generally
“unauthorized” where it could not lawfully be imposed under any
circumstance in the particular case. . . .’ [Citation.]” (People v.
Wilson (2013) 219 Cal.App.4th 500, 518.) This includes a
sentence imposed in violation of Apprendi. (Ibid.)
5
decide whether the defendant’s conduct, as demonstrated in the
record of the prior conviction, shows that the crime was a serious
felony.’ [Citation.] And when the sentencing court must rely on a
finding regarding the defendant’s conduct, but the jury did not
necessarily make that finding (or the defendant did not admit to
that fact), the defendant’s Sixth Amendment rights are violated.”
(Id. at p. 135.) In determining whether the prior conviction
qualifies as a strike, “[t]he court’s role is . . . limited to identifying
those facts that were established by virtue of the conviction
itself—that is, facts the jury was necessarily required to find to
render a guilty verdict, or that the defendant admitted as the
factual basis for a guilty plea.” (Id. at p. 136, fn. omitted, italics
added.) The court made clear that “determinations about the
nature of prior convictions are to be made by the court, rather
than a jury, based on the record of conviction.” (Id. at p. 138.)
Under California law, any felony in which the defendant
personally used a weapon in a manner capable of causing and
likely to cause substantial physical injury qualifies as a strike.
(§ 1192.7, subd. (c)(23); In re Scott (2020) 49 Cal.App.5th 1003,
1020 (Scott), review granted Aug. 12, 2020, S262716.)4 Moreover,
“any felony in which a defendant personally inflicts great bodily
injury on any person, other than an accomplice” constitutes a
serious felony. (§ 1192.7, subd. (c)(8)).
Appellant was convicted under federal law of committing
an assault with serious bodily injury. The elements of that
4In Scott, the Supreme Court granted review and deferred
the matter pending consideration and disposition of In re Milton,
S259954, which raises the issue whether Gallardo applies
retroactively to final judgments. (Cal. Rules of Court, rule
8.512(d)(2).)
6
offense are (1) an assault; and (2) resulting serious bodily injury.
(18 U.S.C.S. § 113, subd. (a)(6).) As the record reflects, appellant
admitted that he personally used a knife to commit the crime and
personally inflicted great bodily injury upon the victim. He also
admitted that if the matter had gone to trial the prosecution
could prove beyond a reasonable doubt that he “intentionally
struck or wounded the victim” and that “as a result of [his]
actions, the victim suffered serious physical injury.” “Because
[appellant] admitted via his [federal] guilty plea the facts on
which the sentencing court based its conclusion that the
conviction qualified as a strike under California law, the court
did not engage in the type of judicial factfinding regarding
disputed facts disapproved of by Gallardo. Rather, the court
merely assumed its proper role of determining the legal
characterization of the undisputed facts. [Citation.]” (Scott,
supra, 49 Cal.App.5th at p. 1020.)
Appellant does not dispute that he admitted personally
using a knife and that he personally inflicted great bodily injury
upon the victim. He asserts, however, that the trial court could
not rely on these admissions because personal weapon use and
the personal infliction of great bodily injury are not elements of
the offense of which he was convicted. Like the petitioner in
Scott, he claims that such a conclusion is compelled by Descamps
v. United States (2013) 570 U.S. 254 [186 L.Ed.2d 438]
(Descamps). In Descamps, “the high court found that the federal
district court had erred by using the ACCA [Armed Career
Criminal Act] to enhance the defendant’s punishment based on a
prior state burglary conviction where the state’s burglary statute
did not include an unlawful-entry element required by the ACCA
to allow for enhancement.” (Scott, supra, 49 Cal.App.5th at
7
p. 1014, citing Descamps, at pp. 258-259.) “Based on federal
ACCA precedent, Sixth Amendment principles, and fairness
considerations, the Descamps court construed the ACCA as
limiting a sentencing court’s comparison of prior and current
convictions to the elements of those offenses (the so-called
‘categorical approach’), except to the extent a limited inquiry into
the record of the prior conviction is necessary to determine which
statement of a divisible statute was violated (the so-called
‘modified categorical approach’).” (Scott, at p. 1014, citing
Descamps, at pp. 267-270.)
Contrary to appellant’s claim, Descamps did not prohibit
the trial court from looking beyond the elements of his prior
offense in determining whether it constituted a strike under
California law. As the court in Gallardo recognized, Descamps
was “decided on statutory, rather than constitutional, grounds.”
(Gallardo, supra, 4 Cal.5th at p. 134; Scott, supra, 49 Cal.App.5th
at p. 1021.) The court in Gallardo also recognized that ACCA
analysis is “based on the elements of the crime of which the
defendant was convicted,” while the Three Strikes law analysis is
“based on the underlying conduct that gave rise to the
conviction.” (Gallardo, at p. 135; Scott, at p. 1021.) Moreover,
the court made clear that nothing in Descamps or its progeny
precluded the trial court from considering facts “that the
defendant admitted as the factual basis for a guilty plea.”
(Gallardo, at p. 136; Scott, at p. 1021.) Appellant’s claim that the
court erred considering such facts thus fails.5
5In light of our conclusion, we also reject appellant’s claim
that the trial court erred in relying on his 2004 federal conviction
of assault resulting in serious bodily injury in imposing strike
8
II.
Appellant was sentenced on April 18, 2019. On the
principal term in case number 1473654, the trial court imposed a
five-year prior serious felony enhancement pursuant to section
667, subdivision (a). Appellant contends that his attorney at
sentencing provided constitutionally ineffective assistance of
counsel by failing to urge the court to strike the prior serious
felony in the interests of justice pursuant to Senate Bill 1393,
which went into effect on January 1, 2019.6
Appellant fails to demonstrate ineffective assistance, which
requires showings of both deficient performance and resulting
prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 689
[80 L.Ed.2d 674].) Neither showing is made here. “A court is
‘presumed to have been aware of and followed the applicable law’
when imposing a sentence. [Citation.]” (People v. Reyes (2016)
and prior serious felony enhancements on the terms in case
numbers 1473654 and 1445369. (See People v. Baker (2002) 144
Cal.App.4th 1320, 1328-1329 [in combining sentences imposed in
multiple proceedings into a single aggregate term, the trial court
is authorized under section 1170.1 to modify a previously-
imposed sentence so long as the court does not alter the prior
sentencing court’s discretionary sentencing decisions].)
6 Senate Bill 1393 amended sections 667, subdivision (a)
and 1385, subdivision (b) to allow a trial court to exercise its
discretion to strike or dismiss a prior serious felony conviction for
purposes of sentencing. Under the former versions of these
statutes, the court was required to impose a five-year consecutive
term for “[a]ny person convicted of a serious felony who
previously has been convicted of a serious felony” (former § 667,
subd. (a)) and had no discretion “to strike any prior conviction of
a serious felony for purposes of enhancement of a sentence under
Section 667.” (former § 1385, subd. (b)).
9
246 Cal.App.4th 62, 82.) Appellant was sentenced over three
months after Senate Bill 1393 went into effect. Accordingly, we
must presume that the court was aware of its authority to strike
the prior serious felony conviction, yet chose not to do so. (See
People v. Mosley (1997) 53 Cal.App.4th 489, 499 [sentencing court
was presumably aware of its authority to strike a prior strike
conviction pursuant to People v. Superior Court (Romero) (1996)
13 Cal.4th 497, which was filed 53 days prior to sentencing].) In
light of this presumption, appellant cannot establish that
counsel’s failure to expressly request that the court to exercise its
discretion under Senate Bill 1393 amounts to ineffective
assistance. (See People v. Beasley (2003) 105 Cal.App.4th 1078,
1092, citation omitted [“Counsel’s failure to make a futile or
unmeritorious objection is not deficient performance”].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
10
Von D. Deroian, Judge
Superior Court County of Santa Barbara
______________________________
Arielle Bases, 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, Senior
Assistant Attorney General, Michael R. Johnsen, Supervising
Deputy Attorney General, Kristen J. Inberg, and Christopher
Sanchez, Deputy Attorneys General, for Plaintiff and
Respondent.