In re Brown CA4/2 ( 2023 )

Filed 6/28/23 In re Brown CA4/2
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
E071401
In re BRANDON CRAIG BROWN,
(Super. Ct. Nos. WHCJS1800004
FSB039762)
on Habeas Corpus
OPINION
APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill
and Brian S. McCarville, Judges. Affirmed.
James Anderson District Attorney, Philip P. Stemler, Deputy District Attorney, for
Appellant.
James M. Crawford, under appointment by the Court of Appeal, for Respondent.
I.
INTRODUCTION
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
1 2
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 argued in their original appeal that the trial court erred in granting
defendant’s writ petition and vacating his sentence because (1) his 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 (Gallardo), retroactively, (3) the trial court
exceeded its jurisdiction by vacating the carjacking strike imposed in cases against
defendant in Los Angeles (case No. VA 076709) and Orange County (case No.
03NF1824), (4) defendant’s trial counsel’s failure to object to the carjacking strike did
not constitute IAC, 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.
On February 25, 2020, we issued a published decision affirming the trial court
orders granting defendant’s writ petition and the judgment. We concluded 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 did not address defendant’s IAC challenge or the People’s other objections.
1
This statute is referred to herein as 707(b) or section 707(b).
2
This statute is referred to herein as 667(d)(3) or section 667(d)(3).
2
On June 10, 2020, the California Supreme Court granted the People’s petition for
review of this court’s decision, and ordered that further action in this matter was deferred
pending consideration and disposition of a related issue in In re Milton (2019) 42
Cal.App.5th 977 (see Cal. Rules of Court, rule 8.512(d)(2)). On August 22, 2022, the
Supreme Court issued its decision in In re Milton (2020) 13 Cal.5th 893 (Milton).
On November 9, 2022, the Supreme Court ordered this case retransferred to our
court with directions to vacate our opinion, rendering it depublished, and to reconsider
the cause in light of Milton, supra, 13 Cal.5th 893. (In re Brown on Habeas Corpus
(2022) 519 P.3d 333) We vacated our original opinion on November 15, 2022, and the
parties filed supplemental briefs limited to the matters arising after this court’s previous
opinion was filed.
We now consider the matter in light of Milton, supra, 13 Cal.5th 893, and in
accordance with Milton, hold that Gallardo, supra, 4 Cal.5th 120, does not apply
retroactively. We further conclude that the trial court did not err in granting defendant’s
writ petition and vacating his sentence because defendant’s juvenile carjacking
adjudication does not qualify as a strike and his attorney committed IAC by not objecting
to the strike. In addition, we conclude the delay in defendant bringing his writ petition in
the trial court was not unreasonable or unduly prejudicial. We also conclude the trial
court did not exceed its jurisdiction by vacating the carjacking strike entered in the Los
Angeles (case No. VA 076709) and Orange County (case No. 03NF1824) cases. We
therefore affirm the trial court writ petition order and judgment.
3
II.
FACTS AND PROCEDURAL BACKGROUND
A. Prior Los Angeles Juvenile Court Carjacking Adjudication
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 the 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 former California Youth Authority (CYA).
4
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.
B. Defendant’s 2003 Crime Spree
After his release from the CYA, defendant committed numerous crimes as an adult
in March, April, and May 2003, in the counties of Los Angeles, Orange, San Bernardino,
3
and Riverside.
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 2001 juvenile carjacking adjudication.
3
Defendant also pled guilty and was convicted in Riverside Superior Court
(RCSC) in 2007, of one count of second degree robbery committed in 2003 (RCSC case
No. RIF110773) and was sentenced in 2007 to 13 years in prison. The Riverside case is
not relevant to this appeal because, unlike the other criminal cases mentioned in this
appeal, the juvenile carjacking adjudication was not included as a strike in the Riverside
criminal case.
5
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 2001 juvenile carjacking adjudication.
C. San Bernardino Superior Court Case
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).
1. Guilty Plea in the SBSC Case
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
6
consecutive to a four-year term imposed in LASC case No. VA076709, for a total prison
term of 24 years eight months.
2. Sentencing in the SBSC Case
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 section 707(b). Higgins noted defendant admitted violating Penal Code section
7
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, on July 21,
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.
D. Defendant’s Petition for Writ of Habeas Corpus
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 2001 juvenile
carjacking adjudication qualified as a strike. Defendant alleged the juvenile carjacking
8
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 of the trial court’s
register of actions; a reporter’s transcript of the June 5, 2006, sentencing hearing in the
SBSC case; the LAJC petition; the December 27, 2016, CDCR letter notifying the court
that defendant’s sentence in the SBSC case appeared to be improper; the February 1,
2017, public defender memorandum concluding defendant’s sentence was improper
because his juvenile carjacking adjudication did not qualify as a strike; and defendant’s
declaration supporting his writ petition.
Defendant stated in his supporting declaration that, after consulting with his
attorney on May 12, 2006, and upon his attorney’s advice, he pled guilty in the SBSC
case and admitted the juvenile carjacking strike allegation. In discussing the proposed
plea bargain, defendant’s attorney erroneously advised him that it made no difference that
he was a juvenile when he committed the carjacking prior. It still qualified as a strike,
and if defendant went to trial, he would be exposed to a maximum sentence of 45 years
and four months. For these reasons, defendant accepted the plea deal.
Defendant further stated in his declaration that it was not until recently that he was
told his juvenile carjacking strike might be improper. Upon learning this, defendant
9
immediately sought legal assistance. His previous attorney never told him that his
juvenile carjacking adjudication did not qualify as a strike unless it was alleged and
proven that he was armed with a dangerous or deadly weapon when he committed the
carjacking. Around December 27, 2016, defendant received the CDCR letter indicating
there were discrepancies in his sentence. Defendant immediately contacted the San
Bernardino County Public Defender’s Office. Deputy Public Defender Higgins told
defendant on February 1, 2017, that his juvenile carjacking adjudication did not qualify
as a strike because there had been no allegation or proof that he used a dangerous or
deadly weapon during the juvenile carjacking offense.
In April 2018, the SBSC issued an order to show cause (OSC) as to why defendant
should not be allowed to withdraw his plea in the SBSC case. The court’s order detailing
the basis of its OSC states that “[t]he oral pronouncement of judgment is confusing as set
forth in the reporter’s transcript. The trial court made several mathematical mistakes and
misspoke regarding the Los Angeles case number. . . . The abstract is in agreement with
the plea as to the total of 24 years eight months, but has other obvious errors that do not
conform with the trial court’s oral pronouncement and appear in violation of Penal Code
section 1170.1, subdivision (a). The abstract makes no mention of [defendant’s] Los
Angeles case, case [N]o VA076709.”
In addition, the court ordered the People to show cause as to why defendant should
not be allowed to withdraw his plea in the SBSC case or alternatively be resentenced as if
10
he did not have a strike, on IAC grounds and because defendant did not enter his plea
voluntarily and knowingly with the full understanding of its consequences.
E. The People’s Return to Defendant’s Writ Petition
In June 2018, the People filed a return (Return) to the writ petition, asserting that
defendant provided an incomplete record, his juvenile carjacking prior qualified as a
strike, his IAC objection lacked merit, his guilty plea was knowing and voluntary, and his
writ petition was untimely and barred by laches. The People attached to their Return a
copy of the probation report dated October 17, 2001, filed in the LAJC juvenile
carjacking case.
The People also filed a declaration by defendant’s previous attorney, Earl Carter,
stating that he did not recall his investigation in the SBSC case or his advisements to
defendant regarding defendant’s maximum exposure in the case. Carter added that it was
his custom and practice to investigate the validity of all allegations, advise his clients of
them, and advise his clients regarding their maximum exposure when they were offered a
plea bargain. Carter further stated he gave his case files and notes to defendant’s current
defense attorney.
Also attached to the People’s Return were affidavits of unavailability of the
reporter’s transcript in the juvenile carjacking case, for the LAJC hearing on December
18, 2001; and the reporter’s transcripts in the SBSC case, for hearings on January 6,
2006, April 19, 2006, and May 12, 2006.
11
F. Defendant’s Traverse to the People’s Return
In July 2018, defendant filed a traverse to the People’s Return, denying that his
juvenile carjacking adjudication qualified as a strike, because there was no admission or
allegation that he was armed or used a dangerous or deadly weapon during commission
of the carjacking. Defendant further objected to the court considering the LAJC
probation report because it constituted inadmissible hearsay and was not part of the
record of conviction or plea in the juvenile carjacking case. Defendant also argued IAC
and that his guilty plea and admissions in the SBSC case were not made knowingly and
intelligently.
G. The Trial Court’s Ruling on Defendant’s Writ Petition
After reviewing the writ petition, return, and traverse, the trial court concluded an
evidentiary hearing on defendant’s writ petition was not required because there were no
disputed factual questions as to matters outside the trial court record. On August 31,
2018, the trial court heard oral argument on defendant’s writ petition for modification of
his sentence. After hearing oral argument, the trial court granted defendant’s writ
petition and stayed the ruling for one week to allow the People time to decide how they
wished to proceed. The following week, on September 5, 2018, the trial court again
granted defendant’s writ petition and ordered him to be resentenced in the SBSC case
based on the terms of his original plea, with the exception that resentencing was not to
include sentencing on the juvenile carjacking strike.
12
The SBSC explained in a detailed written order that defendant’s writ petition was
granted on the following grounds: (1) defendant’s attorney committed IAC by failing to
object to the juvenile carjacking strike; (2) Gallardo, supra, 4 Cal.5th 120, applied
retroactively to the instant case; (3) the trial court could not rely on the probation report
when determining whether defendant’s juvenile carjacking adjudication qualified as a
strike; (4) even if the probation report could be considered, it did not provide proof
beyond a reasonable doubt that defendant used a weapon when committing the juvenile
carjacking offense; and (5) the People’s untimeliness/laches argument lacked merit
because there was no prejudice caused by defendant’s delay in seeking writ relief and the
delay was not unreasonable.
H. Resentencing
On September 7, 2018, the trial court in the SBSC case resentenced defendant in
accordance with its order granting defendant’s writ petition. Because the court found that
the juvenile carjacking adjudication did not qualify as a strike, defendant’s sentence was
reduced from 24 years eight months to 16 years eight months. The trial court resentenced
defendant to an aggregate term of 11 years in the SBSC case (case No. FSB039762), and
five years eight months for the two subordinate cases (LASC case No. VA 076709 and
OCSC case No. 03NF1824), upon finding the juvenile carjacking adjudication also did
not qualify as a strike in the LASC and OCSC cases. The People timely filed notices of
appeal of the trial court order granting defendant’s writ petition and resentencing order.
13
On September 21, 2018, the habeas court resentenced defendant and modified the
sentence again, adding sentencing on Orange County case no. 03NF1824. The habeas
court explained it was modifying the sentence because the CDCR notified the court that it
had incorrectly sentenced defendant. After correcting the sentence, the habeas court
again imposed an aggregate sentence of 16 years 8 months.
III.
COMPLIANCE WITH HABEAS WRIT PETITION REQUIREMENTS
Defendant requested the trial court to issue a writ of habeas corpus vacating his
guilty plea, juvenile carjacking strike, enhancement admissions, and sentence imposed in
the SBSC case. The People appeal the trial court’s order granting defendant’s writ
petition request to vacate the carjacking adjudication strike and resentence defendant.
Under our state Constitution, a person improperly deprived of his or her liberty has
the right to petition for a writ of habeas corpus. (Cal. Const., art. I, § 11; People v.
Duvall (1995) 9 Cal.4th 464, 474 (Duvall).) A petition for a writ of habeas corpus
collaterally challenges a presumptively final criminal judgment. Therefore, the petitioner
bears a heavy burden to plead and prove grounds for relief. (Duvall, supra, at p. 474; In
re Gay (2020) 8 Cal.5th 1059, 1072.)
One of the common uses of habeas by a criminal defendant is to challenge an
unauthorized sentence. (People v. Allison (2019) 39 Cal.App.5th 688, 699.) “It is well
established that ‘[a] plea bargain that purports to authorize the court to exercise a power it
does not have is unlawful and may not be enforced.’ [Citation.] . . . [T]here is no such
14
disagreement about the rule that an unlawful sentence can be corrected by the trial court
at any time.” (Id. at p. 699; see also In re Spears (1984) 157 Cal.App.3d 1203, 1210 [“a
claim of incompetence of appellate counsel based on failure to raise the issue of
insufficiency of the evidence is cognizable in a habeas corpus proceeding.”].)
When reviewing such a petition, the trial court “evaluates it by asking whether,
assuming the petition’s factual allegations are true, the petitioner would be entitled to
relief. [Citations.] If no prima facie case for relief is stated, the court will summarily
deny the petition.” (Duvall, supra, 9 Cal.4th at pp. 474-475.) If the court finds the
factual allegations establish a prima facie case for relief, the court will issue an OSC. (Id.
at p. 475.) When an OSC issues, it is limited to the claims raised in the writ petition and
the factual bases for those claims. Issuance of an OSC indicates the court’s preliminary
assessment that the petitioner would be entitled to relief if the petitioner’s factual
allegations are proved. (Ibid.)
The custodian of the confined person, the People, shall then file a responsive
pleading, called a “return,” justifying the confinement. (Pen. Code, § 1480; Duvall,
supra, 9 Cal.4th at p. 475.) The return shall allege facts establishing the legality of the
petitioner’s custody and respond to the petition allegations that the confinement is
unlawful. (Duvall, supra, at p. 476.) In addition, the return should also “provide such
documentary evidence, affidavits, or other materials as will enable the court to determine
which issues are truly disputed.” (In re Lewallen (1979) 23 Cal.3d 274, 278, fn. 2;
accord, Duvall, supra, at p. 476.) In response to the return, the petitioner may file a
15
traverse, which either admits or disputes the return’s factual allegations responsive to the
petition. (Duvall, supra, at p. 477.)
In the instant case, the parties and trial court properly followed these procedures.
IV.
THE CARJACKING PRIOR ADJUDICATION
DOES NOT QUALIFY AS A STRIKE
The People contend the trial court erred in granting defendant’s writ petition based
on the 2001 juvenile carjacking adjudication not qualifying as a strike. The People argue
the 2001 probation report, which the People argue is part of the record of conviction,
establishes that the carjacking offense qualifies as a strike. We disagree.
A. Law Applicable to Strikes Based on Juvenile Adjudications
Under 667(d)(3), “[a] prior juvenile adjudication shall constitute a prior felony
conviction for Three Strikes purposes only if the prior offense is listed in Welfare and
Institutions Code section 707 [subdivision] (b)” and is classified as a “serious” felony
under Penal Code section 1192.7, subdivision (c), or as a “violent” felony under Penal
Code section 667.5, subdivision (c). (People v. Garcia (1999) 21 Cal.4th 1, 13 (Garcia).)
In the instant case, defendant was charged in 2001, as a juvenile, with carjacking
(Pen. Code, § 215, subd. (a)) and unlawful driving or taking of a vehicle (Pen. Code,
§ 10851, subd. (a)). These crimes are not included in the 707(b) list of offenses that
qualify as a strike. After the LAJC admitted into evidence the probation report,
16
defendant admitted the charges and the juvenile court sustained the juvenile petition
charges.
B. Defendant’s Carjacking Offense Does Not Qualify as a Strike
The People agree that a section 215(a) carjacking offense, when committed by a
juvenile, does not qualify as a strike. However, the People argue defendant’s juvenile
carjacking adjudication qualifies as a strike under 707(b)(25), because the facts stated in
the probation report establish that defendant committed the crime of “Carjacking, as
described in [s]ection 215 of the Penal Code, while armed with a dangerous or deadly
weapon.” (Welf. & Inst. Code, § 707, subd. (b)(25), italics added.) Such a crime is
included in the list of juvenile crimes qualifying as a strike. (Welf. & Inst. Code, § 707,
subd. (b).) The trial court rejected the People’s argument, concluding that Gallardo,
supra, 4 Cal.5th 120, applied retroactively, and therefore the trial court could not make
the factual weapon-use finding based on the probation report under Gallardo.
In Gallardo, supra, 4 Cal.5th 120, the California Supreme Court partially
overruled People v. McGee (2006) 38 Cal.4th 682 “insofar as it authorizes trial courts to
make findings about the conduct that ‘realistically’ gave rise to a defendant’s prior
conviction.” (Gallardo, supra, at p. 128.) The People in Gallardo alleged the defendant
had a prior felony conviction for assault in violation of former Penal Code section 245,
subdivision (a)(1). At the time of the prior conviction, a defendant could violate that
statute by either committing an assault with a deadly weapon or by means likely to
produce great bodily injury. The former is a serious felony (see § 1192.7, subd. (c)(23) ),
17
but the latter is not: “If defendant committed assault with a deadly weapon, the prior
conviction counted as a strike; if she committed assault by any means of force likely to
produce great bodily injury, it did not.” (Gallardo, supra, at p. 125.) Based on the
transcript of the preliminary hearing in the prior assault case, during which the victim
testified the defendant used a knife, the trial court found that the prior conviction was for
assault with a deadly weapon. (Id. at p. 126.)
The Gallardo court held that, because the record of the prior assault conviction did
not reveal that the defendant admitted the facts in the victim’s testimony as the basis for
her guilty plea, the trial court violated the defendant’s right to a jury trial. (Gallardo,
supra, 4 Cal.5th at pp. 136-137.) The Supreme Court stated the trial court had gone “‘far
beyond the recognition of a prior conviction’” and engaged in impermissible judicial
factfinding by using the preliminary hearing transcript to determine the nature of the
defendant’s prior conviction. (Id. at p. 134.) Disapproving of McGee in part, the
Supreme Court in Gallardo held that “a court considering whether to impose an increased
sentence based on a prior qualifying conviction may not determine the ‘nature or basis’ of
the prior conviction based on its independent conclusions about what facts or conduct
‘realistically’ supported the conviction.” (Gallardo, supra, at p. 136.)
While this case was pending review in the California Supreme Court, the
California Supreme Court in Milton, supra, 13 Cal.5th at page 898, held that Gallardo,
supra, 4 Cal.5th 120, does not apply retroactively to final judgments, such as in the
instant case. As a consequence, the California Supreme Court vacated our opinion in this
18
case and transferred the case back to this court with directions to reconsider the cause in
light of Milton. Because Gallardo does not apply retroactively to this case under Milton,
this court must reconsider whether, under the law applicable when the defendant admitted
the carjacking prior and was sentenced in 2006, defendant’s carjacking prior qualified as
a strike. We conclude it does not under section 667(d)(3). Even without applying
Gallardo retroactively, we conclude defendant’s 2001 juvenile carjacking adjudication
does not qualify as a strike prior because paragraph (D) of section 667(d)(3) has not been
met.
In Garcia, supra, 21 Cal.4th 1, the Supreme Court considered whether a prior
juvenile adjudication for a serious felony, which was not a section 707(b) offense,
qualified as a strike. The Supreme Court in Garcia interpreted the language of section
1170.12, subdivision (b)(3) as providing that an adjudication which is not a 707(b)
offense can constitute a strike prior under section 667(d)(3) only if, at the time of the
juvenile adjudication, the defendant is also adjudicated a ward for a 707(b) offense.
(Garcia, supra, at p. 6.)
The California Supreme Court in Garcia explained that under paragraph (B) of
section 667(d)(3), “a prior juvenile adjudication qualifies as a prior felony conviction for
Three Strikes purposes only if the prior offense is listed in Welfare and Institutions Code
section 707(b) or is classified as ‘serious’ or ‘violent.’ Paragraph (D) does not modify or
conflict with paragraph (B), but states a separate, additional requirement: the prior
adjudication qualifies as a prior felony conviction only if the defendant, in the prior
19
juvenile proceeding, was adjudged a ward because of at least one offense listed in section
707(b).” (Garcia, supra, 21 Cal.4th at p. 13, italics added.)
The Garcia court therefore held that, “[i]n the proceeding leading to the prior
juvenile adjudication alleged and imposed against defendant as a prior felony conviction,
the only felony offense for which defendant was adjudged a ward of the juvenile court
was burglary of an inhabited dwelling, which is not an offense listed in Welfare and
Institutions Code section 707(b). Although that offense is classified as serious and
would, therefore, qualify as a strike under paragraph (B), the separate requirement of
paragraph (D), that the juvenile was adjudged a ward of the juvenile court because of
a section 707(b) offense, was not satisfied. The trial court therefore erred in sentencing
defendant under section 667, subdivision (e)(1).” (Garcia, supra, 21 Cal.4th at p. 15.)
Garcia did not address or consider the issue raised here of whether the
requirement of paragraph (D) of section 667(d)(3) can be satisfied by the trial court going
behind the prior adjudication and determining based on the record of the prior
adjudication that the defendant committed an unalleged 707(b) offense.
The court in In re Jensen (2001) 92 Cal.App.4th 262, 266 (Jensen), however,
addressed the issue. In Jensen, the court stated that the trial court can go behind the
juvenile adjudication to determine from the entire record whether the adjudication
involved the commission of a 707(b) offense, required under paragraph (B) of section
667(d)(3) for a strike finding. But citing Garcia, supra, 21 Cal.4th at page 15, the Jensen
court further concluded that the trial court cannot go behind the adjudication to determine
20
whether paragraph (D) of section 667(d)(3), is satisfied. Paragraph (D) requires that the
strike prior be based on adjudication of at least one section 707(b) offense. (Jensen,
supra, at p. 267.)
As the court in Jensen explained, “In urging the record of the prior adjudication be
examined to satisfy paragraph (D) by showing Jensen’s conduct constituted a Welfare
and Institutions Code section 707(b) offense, the People effectively treat paragraph (D) as
though it merely sets forth the offenses that qualify as juvenile strikes, much like
paragraph (B). [¶] In doing so, the People lose sight of the salient requirement of
paragraph (D)—namely, the adjudication of wardship be based on at least one Welfare
and Institutions Code section 707(b) offense. Such treatment also ignores the statutory
interpretation adopted by our state’s high court, which found paragraph (D) sets forth a
necessary and independent requirement for using a prior juvenile adjudication as a strike.
(Garcia, supra, 21 Cal.4th at pp. 6, 12.) As the Supreme Court put it: ‘[W]e interpret
paragraph (B) as setting out the list of prior juvenile offenses that will qualify as strikes
and paragraph (D) as requiring, in addition, that in the prior juvenile proceeding giving
rise to the qualifying adjudication the juvenile [had] been adjudged a ward of the court
because of a Welfare and Institutions Code section 707(b) offense, whether or not that
offense is the same as the offense currently alleged as a strike.’ (Id. at p. 6, italics added.)
In other words, ‘[p]aragraph (D), . . . unlike paragraph[] . . . (B), does not set forth a
circumstance relating to “the prior offense.” Instead, it requires that the juvenile “was
adjudged” a ward under Welfare and Institutions Code section 602 because of a Welfare
21
and Institutions Code section 707(b) offense. (§ 667, subd. (d)(3)(D).)’ (Id. at p. 7.)”
(Jensen, supra, 92 Cal.App.4th at p. 267.)
The Jensen court rejected People v. Fountain (2000) 82 Cal.App.4th 61(Fountain), to the extent Fountain suggested in dicta that a trial court can look to the
record behind a juvenile adjudicaton to determine whether the defendant’s conduct
constituted a 707(b) offense when determining whether the requirement in paragraph (D)
has been satisfied. (Jensen, supra, 92 Cal.App.4th at pp. 267-268; People v. Squier
(1993) 15 Cal.App.4th 235, 240.)
The Jensen court stated: “In dicta, the Court of Appeal in People v. Fountain,
supra, 82 Cal.App.4th at page 68, stated a trial court could properly look to the record
behind a juvenile adjudication of battery with serious bodily injury (§ 243, subd. (d)) to
determine whether the defendant’s conduct constituted a Welfare and Institutions Code
section 707(b) offense, namely assault by any means likely to produce great bodily
injury.[] [¶] However, this observation does not help the People here. As we read
People v. Fountain, supra, 82 Cal.App.4th 61, the purpose of examining the record of the
juvenile adjudication was to determine whether the requirement of paragraph (B) was
met. Battery with serious bodily injury is not a strike offense—it is neither a violent
felony under section 667.5 nor a serious felony under section 1192.7, and it is not an
offense listed in Welfare and Institutions Code section 707(b). We have no quarrel with
the proposition that a trial court can go behind the bare juvenile adjudication to determine
whether it is a qualifying offense—that is, whether it meets the requirement of paragraph
22
(B). (See People v. Leng (1999) 71 Cal.App.4th 1, 9.) Our position, as outlined above,
is that a trial court cannot do so to meet the requirement of paragraph (D). To the extent
that People v. Fountain, supra, 82 Cal.App.4th 61, holds otherwise, we decline to follow
it.” (Jensen, supra, 92 Cal.App.4th at pp. 267-268; italics added.)
The Jensen court therefore held that the defendant’s prior juvenile adjudication for
voluntary manslaughter did not qualify as a strike under section 667(d)(3), because “[a]
necessary condition—that Jensen was adjudged a ward of the juvenile court for an
offense listed in Welfare and Institutions Code section 707(b)—was not met. (§ 667,
subd. (d)(3)(D.)” (Jensen, supra, 92 Cal.App.4th at p. 268.)
Likewise, here, the necessary condition, paragraph (D) of section 667(d)(3) was
not met. In the prior 2001 juvenile proceeding, defendant was not adjudged a ward based
on at least one offense listed in section 707(b). And as in Jensen, the sentencing court in
2006 could not go behind the 2001 record to establish the separate, additional
requirement in paragraph (D) of section 667(d)(3).
Fountain does not provide persuasive authority to the contrary. In Fountain, 82
Cal.App.4th 61, 69, the court held that the defendant’s juvenile adjudication for battery
with serious bodily injury did not qualify as a strike, where the record was silent as to
whether the defendant acted by means of force “likely” to cause great bodily injury. The
Fountain court’s comment that the sentencing court could look behind the adjudication
and look at the defendant’s conduct, concerned determining whether the adjudicated
offense qualified as a 707(b) offense. The Fountain court did not differentiate between
23
paragraphs (B) and (D) of section 667(d)(3) when it stated that the court could go behind
the record. (Fountain, supra, at p. 68.)
Furthermore, the Fountain court relied on People v. Reed (1996) 13 Cal.4th 217and People v. Guerrero (1988) 44 Cal.3d 343, 351, in support of the proposition that the
court could look behind the prior adjudication. (Fountain, supra, 82 Cal.App.4th at p.
68.) Reed and Guerrero were decided before the California Supreme Court decided
Garcia, supra, 21 Cal.4th 1, which clarified the difference between the strike prior
requirements in paragraphs (B) and (D) of 667(d)(3).
Even assuming there was sufficient evidence in the record of the prior adjudication
establishing a 707(b)(25) offense (carjacking while armed), the People cannot establish
that the offense qualifies as a strike because the People cannot show compliance with the
paragraph (D) requirement. Paragraph (D) requires that defendant was adjudged a ward
based on an offense listed in section 707(b), which did not occur. (707(b)(25);
§ 667(d)(3)(D); Garcia, supra, 21 Cal.4th at p. 13; Jensen, supra, 92 Cal.App.4th at p.
268.)
V.
IAC
The People argue in their appellate supplemental reply brief that, “Now that the
4
Supreme Court has decided the Gallardo rule[ ] may not be applied retroactively,
Brown’s only remaining claim is that he was denied the effective assistance of counsel in
4
Omission of the Gallardo case cite footnote.
24
admitting the juvenile strike prior in 2006.” The People argue there was no IAC because
the 2001 record of adjudication of the carjacking offense supports a finding that
defendant committed the alternative crime of carjacking while armed with a dangerous or
deadly weapon (707(b)(25)), which qualifies as a strike prior. For the reasons stated in
the foregoing section, we disagree that defendant’s carjacking offense qualifies as a
707(b) strike, and therefore conclude defendant has met his burden of establishing IAC.
The habeas court granted defendant’s writ petition in part based on finding his
defense attorney provided deficient representation by not objecting during sentencing to
the trial court’s finding that defendant’s carjacking adjudication qualified as a strike. In
order to successfully challenge a guilty conviction on the ground of IAC, a defendant
must establish both: “‘(1) that counsel’s representation fell below an objective standard
of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s
unprofessional errors, a determination more favorable to defendant would have resulted.
[Citations.] If the defendant makes an insufficient showing on either one of these
components, the ineffective assistance claim fails.’” (People v. Holt (1997) 15 Cal.4th
619, 703, quoting People v. Rodrigues (1994) 8 Cal.4th 1060, 1126; see also People v.
Booth (2016) 3 Cal.App.5th 1284, 1302.) In reviewing a claim of ineffective assistance
of counsel, a court must view the actions of trial counsel with deference and indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance. (Strickland v. Washington (1984) 466 U.S. 668, 689, People v.
Holt, supra, at p 703.)
25
The People argue there was no IAC because, under the law at the time of
defendant’s 2006 sentencing, it would have been futile, based on the facts in the
probation report, to object to the trial court treating the juvenile carjacking as a strike.
The People assert that the weight of authority, as reflected in People v. McGee, supra, 38
Cal.4th at pages 697-706, supported allowing the trial court to rely on the probation
report to find the juvenile carjacking offense qualified as one of the listed 707(b) strikes.
But as discussed above, regardless of whether the record of the carjacking adjudication
provided sufficient evidence of the qualifying 707(b) offense of carjacking while armed
with a firearm, the offense could not qualify as a strike prior under section 667(d)(3),
because there was no compliance with paragraph (D) of section 667(d)(3).
Defense counsel’s failure to advise defendant that the section 215(a) carjacking
adjudication did not qualify as a strike and counsel’s failure during the 2006 sentence
hearing to object to the strike was not objectively reasonable. (People v. Booth, supra, 3
Cal.App.5th at p. 1303.) There is no professionally excusable explanation for defense
counsel failing to do so given Garcia’s holding, which predates defendant’s sentencing,
that 667(d)(3)(D) imposes a “separate, additional requirement,” which was not met here.
In addition, defendant was prejudiced by his attorney’s IAC in that it is probable
defendant would not have admitted the strike had counsel advised him it did not qualify
as a strike. It is also probable the sentencing court would not have imposed the strike
prior had defense counsel objected to it under section 667(d)(3). The record of the 2001
adjudication was insufficient to support imposing a strike prior based on defendant’s
26
conduct in 2001, because the People could not comply with paragraph (D) of section
667(d)(3). There is thus a reasonable probability that, but for counsel’s unprofessional
errors, a determination more favorable to defendant would have resulted. Had defense
counsel advised defendant and the court that it did not qualify as a strike prior, defendant
likely would not have admitted the strike prior and the sentencing court likely would not
have imposed it, because it did not qualify as a strike prior under then-existing law. (See
Garcia, supra, 21 Cal.4th at pp. 6, 12.)
Furthermore, even if there were no IAC, the trial court properly granted
defendant’s writ petition based on the ground the carjacking adjudication did not qualify
as a strike under section 667(d)(3) and therefore was an unauthorized sentence.
VI.
LACHES
The People contend defendant’s writ petition was untimely and the delay in
bringing it prejudiced the People’s ability to challenge the writ petition. The reporters’
transcripts of relevant proceedings were no longer available and defendant’s attorney
could not remember the proceedings.
As explained in In re Robbins (1998) 18 Cal.4th 770, 777, “California law also
recognizes that in some circumstances there may be matters that undermine the validity
of a judgment or the legality of a defendant’s confinement or sentence, but which are not
apparent from the record on appeal, and that such circumstances may provide a basis for
a collateral challenge to the judgment through a writ of habeas corpus.” A variety of
27
procedural rules have been recognized that govern such writ relief, including the
requirement that claims raised in a habeas corpus petition must be timely filed. (In re
Robbins, supra, at p. 778.) Unjustified delay in presenting habeas corpus writ petition
claims bars consideration of the merits of the petition. (In re Clark (1993) 5 Cal.4th 750,
759; People v. Miller (1992) 6 Cal.App.4th 873, 881-882.)
In order “to avoid the bar of untimeliness with respect to each claim, the petitioner
has the burden of establishing (i) absence of substantial delay, (ii) good cause for the
delay, or (iii) that the claim falls within an exception to the bar of untimeliness.” (In re
Robbins, supra, 18 Cal.4th at p. 780.) An exception to any timeliness bar applies here.
Regardless of any delay, the trial court properly granted defendant’s writ petition
challenging defendant’s 2006 sentence, because the juvenile carjacking adjudication does
not qualify as a strike. Writ relief “will always issue to review an invalid sentence, when,
without the redetermination of any facts, the judgment may be corrected to accord with
the proper determination of the circumstances.” (In re Estrada (1965) 63 Cal.2d 740,
750.) In the instant case, writ relief has been issued “where the trial court has sentenced a
defendant to a term in excess of the maximum provided by law.” (Ibid.)
It is settled law in California that an unauthorized sentence can be challenged and
corrected at any time. (People v. Scott (1994) 9 Cal.4th 331, 354; Montgomery v.
Louisiana (2016) 577 U.S. 190, 213 [defendant permitted to challenge sentence as cruel
and unusual punishment 50 years after his arrest]; People v. Sanchez (2016) 245
Cal.App.4th 1409, 1417.) Habeas corpus relief is thus proper here where defendant was
28
sentenced to serve an illegal or unauthorized sentence. (In re Harris (1993) 5 Cal.4th
813, 839.) Writ relief may be granted when “the sentencing court acted in excess of its
jurisdiction by imposing a sentence on the petitioner that was longer than that permitted
by law.” (Ibid. [“We again invoked this rule in a case in which a habeas corpus
petitioner claimed two enhancement provisions were improperly applied to lengthen his
overall sentence.”].) (In re Harris (1989) 49 Cal.3d 131, 134, fn. 2, quoting In re
Huffman (1986) 42 Cal.3d 552, 555.)
The unauthorized sentence exception to the general rule precluding relief after a
judgment is final, applies here. Defendant’s sentence is unauthorized, either because the
sentencing court in 2006 simply overlooked the fact the carjacking strike was based on a
juvenile adjudication that does not qualify as a strike, or the court erroneously concluded
the prior qualified as a strike based on the probation report. Either way, defendant’s 2001
juvenile carjacking adjudication does not qualify as a strike. Therefore, the trial court
properly granted defendant’s petition for habeas corpus writ relief and vacated
defendant’s carjacking strike.
Furthermore, the record shows good cause for defendant delaying filing his writ
petition until January 5, 2018. Defendant was not told the juvenile carjacking strike was
invalid, and had no way of knowing this until after the CDCR notified the public
defender’s office on December 27, 2016, that defendant’s sentence appeared to be
improper, and the public defender thereafter reviewed the matter and concluded on
February 1, 2017, that defendant’s juvenile carjacking adjudication did not qualify as a
29
strike. It was not until defendant was advised of this that he had any reason to know the
strike was improper and take action to correct it.
On March 23, 2017, defendant requested the SBSC to modify his sentence. When
the trial court heard the matter on July 21, 2017, the parties and the court agreed
defendant should proceed by filing a writ petition. Four months later, on January 5,
2018, defendant filed his writ petition in the trial court.
Under these circumstances, defendant moved reasonably expeditiously in
challenging the juvenile carjacking strike. The record shows that the significant delay in
seeking such collateral relief was justified. Although some of the relevant reporter’s
transcripts were no longer available, this was not due to any fault on defendant’s part.
Although the unavailable reporter’s transcripts might have been helpful in
reviewing defendant’s writ petition, the People have not shown any prejudice by their
absence. Defendant remains convicted of all of the charged crimes in the SBSC case
based on his guilty plea in that case, and it is highly unlikely that any of the missing
transcripts and notes would have made any difference in the trial court’s ruling on
defendant’s writ petition. Regardless of whether there is missing evidence that may have
supported a finding that defendant was in possession of a firearm when he committed the
carjacking offense, the carjacking adjudication could not qualify as a strike under section
667(d)(3)(D).
30
VII.
JURISDICTION OVER LOS ANGELES
AND ORANGE COUNTY CASES
The People contend the SBSC exceeded its jurisdiction under Penal Code section
1170.1 by vacating the juvenile carjacking strikes in defendant’s Los Angeles and Orange
County cases (LASC case No. VA076709 and OCSC case No. 03NF1824). We disagree.
The SBSC had authority to vacate the juvenile carjacking strike from those cases, as it
did in the SBSC case, because, at the time of resentencing in the SBSC case, the court
was required to impose a single aggregate sentence on all three cases. In doing so, the
SBSC was required to vacate the juvenile carjacking strike in each of the three cases
because the juvenile carjacking adjudication did not qualify as a strike.
When the trial court granted habeas writ relief, the SBSC was thereafter required
to consider the entire sentencing scheme and reconsider all sentencing choices, as to all
pending determinate cases. (People v. Hill (1986) 185 Cal.App.3d 831, 834.) This is
“because an aggregate prison term is not a series of separate independent terms, but one
term made up of interdependent components. The invalidity of one component infects
the entire scheme.” (Ibid.)
“[Penal Code] [s]ection 1170.1 generally governs the calculation and imposition
of a determinate sentence when a defendant has been convicted of more than one felony
offense.” (People v. Williams (2004) 34 Cal.4th 397, 402.) Under Penal Code section
1170.1, subdivision (a), “Except as otherwise provided by law, and subject to [Penal
31
Code] [s]ection 654, when any person is convicted of two or more felonies, whether in
the same proceeding or court or in different proceedings or courts, and whether by
judgment rendered by the same or by a different court, and a consecutive term of
imprisonment is imposed under [Penal Code] [s]ections 669 and 1170, the aggregate term
of imprisonment for all these convictions shall be the sum of the principal term, the
subordinate term, and any additional term imposed for applicable enhancements for prior
convictions, prior prison terms, and [Penal Code] [s]ection 12022.1.” (Italics added.)
California Rules of Court, rule 4.452 further provides: “If a determinate sentence
is imposed under [Penal Code] section 1170.1[,] [subdivision] (a) consecutive to one or
more determinate sentences imposed previously in the same court or in other courts, the
court in the current case must pronounce a single aggregate term, as defined in [Penal
Code] section 1170.1[,] [subdivision] (a), stating the result of combining the previous and
current sentences. In those situations: [¶] (1) The sentences on all determinately
sentenced counts in all of the cases on which a sentence was or is being imposed must be
combined as though they were all counts in the current case.” (Italics added.) In doing
so, status enhancements, such as the juvenile carjacking strike, can be applied only once
when imposing an aggregate sentence. (People v. Edwards (2011) 195 Cal.App.4th
1051, 1057, 1060; People v. Williams, supra, 34 Cal.4th at p. 402.)
In the instant case, after the trial court granted writ relief, the SBSC was required
to impose a single aggregate determinate sentence for the SBSC, LASC, and OCSC
cases. Because the original sentences in each of those cases included sentencing on the
32
juvenile carjacking strike, which did not qualify as a strike, the SBSC had jurisdiction to
vacate the invalid strike in all three cases. Upon properly finding the juvenile carjacking
strike did not qualify as a strike in the SBSC case, the trial court properly made the same
finding as to the same strike in the other two cases. To do otherwise would have resulted
in inconsistent findings and sentencing on the same juvenile carjacking strike, where the
record established that the strike was invalid.
We therefore reject the People’s contention that SBSC did not have jurisdiction to
vacate the juvenile carjacking strike in the LASC and OCSC cases when imposing an
aggregate sentence on the three cases.
VIII.
DISPOSITION
The writ petition order and judgment are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
I concur:
MILLER
Acting P. J.
33
[In re Brandon Brown on Habeas Corpus, E071401]
MENETREZ, J., Dissenting.
I agree that the use of the carjacking strike to enhance the sentence imposed in
respondent Brandon Craig Brown’s case in San Bernardino County Superior Court in
2006 was unauthorized under People v. Garcia (1999) 21 Cal.4th 1 and In re Jensen
(2001) 92 Cal.App.4th 262. I respectfully dissent, however, because the superior court
exceeded its authority at resentencing.
First, the court resentenced Brown not only in his San Bernardino County case but
also in his Los Angeles County case and in his Orange County case, dismissing his
carjacking strike in each instance. The court had no authority to do that. Brown’s habeas
petition expressly sought resentencing only in his San Bernardino County case, and it
listed only his San Bernardino County case number. The prayer for relief mentioned only
his San Bernardino County case. (See People v. Green (1980) 27 Cal.3d 1, 43, fn. 28 [“It
is settled that in a habeas corpus proceeding ‘the court considers only those grounds of
illegality alleged in the petition for issuance of the writ’ [citation], or in any supplemental
petition filed with permission of the court”], overruled on another ground recognized in
People v. Martinez (1999) 20 Cal.4th 225, 241.) The district attorneys in Los Angeles
County and Orange County have never had notice and an opportunity to be heard on any
resentencing in their cases, and the judges in Los Angeles County and Orange County
likewise have not had an opportunity to revisit their sentencing choices.
Second, Brown’s San Bernardino County case was resolved by plea bargain. It
appears that his Los Angeles County case was resolved by plea bargain as well, because
1
he pled no contest to two counts of robbery while three other robbery counts and a
burglary count were dismissed. (On the present record it is unclear whether Brown’s
Orange County case was resolved by plea bargain; he was charged with two counts of
robbery, pled guilty to both, and received concurrent sentences.) Under People v. Stamps
(2020) 9 Cal.5th 685, if a court is considering modifying a sentence to which the parties
agreed in a plea bargain, then the district attorney ordinarily must be given the
opportunity to withdraw from the agreement, and the superior court likewise must have
an opportunity to withdraw its approval of the plea bargain. (Id. at pp. 707-709.)
For both of the foregoing reasons, the superior court exceeded its authority when it
resentenced Brown. We should therefore vacate the sentence and remand for further
proceedings. Accordingly, I respectfully dissent.
MENETREZ
J.
2