Gang prior conviction and impermissible “judicial factfinding”
by
Kenneth A. Reed on Mar. 23, 2020
Summary: The Court reinforced the rules that there are limits to the extent of judicial fact finding, even during court trial proceedings on the application of prior convictions
Gang prior conviction and impermissible “judicial factfinding”
People vs Strike
February 11, 2020
Cal App 4th DCA 3rd
G056949
A jury convicted defendant Christopher Shawn Strike of possession of a controlled substance in a penal institution;1 possession of paraphernalia in a penal institution; and possession of a controlled substance for sale (Health & Saf. Code, § 11378; count 3).
In a bifurcated proceeding, the court found defendant had a prior conviction for gang participation (§ 186.22, subd. (a)), which qualified as a “strike” under the “Three Strikes” law. (§§ 667, subds. (d), (e)(1) & 1170.12, subds. (b), (c)(1).)
At sentencing, the court imposed the midterm of three years on count 1, doubled to six years because of the prior strike conviction. As to count 2, the court imposed a concurrent sentence of four years (two-year term doubled due to the prior strike), and the sentence on count 3 was stayed under section 654.
On appeal, defendant sought reversal of the court’s finding that his prior gang participation conviction constitutes a strike under the Three Strikes law. His position was that the court engaged in impermissible “judicial factfinding” in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution by finding facts that established his prior conviction qualifies as a strike.
The cool GOOD TO KNOW is that the appellate court agreed.
After the jury found defendant guilty of the substantive charges, the court conducted court trial on the prior conviction allegation. The court admitted into evidence, without objection, a packet of documents from defendant’s prior case: (1) the felony complaint; (2) the amended felony complaint; (3) the “TAHL” form) signed by defendant; (4) the “Terms and Conditions of Felony Probation” form signed by defendant; and (5) court minutes.
In the amended complaint filed in October 2007, defendant and another individual were charged with four offenses. Key here is the charge in count 3, which alleged: “On or about December 16, 2006, in violation of Section 186.22(a) of the Penal Code (Street Terrorism), a Felony, Justin [S.] and [defendant] did unlawfully actively participate in Norwalk Skins, a criminal street gang, with knowledge that its members engage in and have engaged in a pattern of criminal gang activity, and did willfully and unlawfully promote, further, and assist in felony criminal conduct by members of that gang.” Pursuant to a plea agreement in November 2007, defendant pleaded guilty to count 3 and the remaining charges and enhancements were dismissed. The 2007 TAHL form executed by defendant stated the following as the factual basis for his guilty plea: “In Orange County, California, on 12-16-06 in violation of Penal Code 186.22(a) did unlawfully actively participate in Norwalk Skins, a criminal street gang, with knowledge that its members engage in and have engaged in a pattern of criminal gang activity, and did willfully and unlawfully promote, further, and assist in felony criminal conduct by members of that gang.”
The court found the strike allegation true. Explaining its ruling, the court indicated it first looked at the factual basis for defendant’s plea. But because the factual basis did not indicate another gang member committed a felony offense with defendant, the court considered “the entire TAHL form” and found it “states that [defendant] is pleading guilty to count 3 as alleged, which is a 186.22(a).” The court then reviewed the factual allegations in count 3 of the charging document, which alleged defendant and his codefendant were members of the same gang and promoted, assisted, or furthered felony criminal conduct by members of their gang. The court found the allegations in the charging document were sufficient to establish the post-Rodriguez requirement that defendant committed a felony with another member of his gang. Finding the strike allegation true, the court doubled the sentencing terms on each of defendant’s convictions under the Three Strikes law.
In a very good analysis of Penal code section 186.22(a), People v. Rodriguez, supra, 55 Cal.4th at p. 1125, and People v. Vega (2015) 236 Cal.App.4th 484. The Court reasoned that Rodriguez had narrowed the scope of section 186.22(a). That certain conduct that was once considered gang participation prior to Rodriguez no longer qualifies as such. This change in the interpretation of section 186.22(a) rendered a pre-Rodriguez conviction inconclusive on its face as to whether it qualified as a strike.
Citing the State Supreme Court, citing the U.S. Supreme Court, the court reasoned “[t]he trial court’s role is limited to determining the facts that were necessarily found in the course of entering the conviction. To do more is to engage in ‘judicial factfinding that goes far beyond the recognition of a prior conviction.’”
The Appellate Court ruled that the trial court strayed beyond permitted judicial factfinding when it indicated it looked at defendant’s “entire TAHL form” and that the form reflected defendant pleaded “guilty to count 3 as alleged, which is 186.22(a)” and that the remaining counts and enhancements were dismissed as part of the plea deal. From there, the court moved to the charging document and reviewed the allegation in count 3, which stated: “On or about December 16, 2006, in violation of Section 186.22(a) of the Penal Code (Street Terrorism), a Felony, Justin [S.] and [defendant] did unlawfully actively participate in Norwalk Skins, a criminal street gang, with knowledge that its members engage in and have engaged in a pattern of criminal gang activity, and did willfully and unlawfully promote, further, and assist in felony criminal conduct by members of that gang.” Based on this allegation in the charging
document, the court found defendant’s gang participation conviction “meets the post Rodriguez requirement” and qualifies as a strike. Explaining its reasoning, the trial court stated: “But I think the fact that [defendant] is pleading to this count and in this count there is another person that’s alleged, like him, to have been an active member of the Norwalk Skins, I do think it’s sufficient.” The Appellate agreed with the trail court that the TAHL form reflected defendant was pleading guilty to count 3, but it did not indicate that he was pleading to the charge as alleged. and that tiny fact revealed the problem requiring reversal.
There was no indication in the record that defendant admitted count 3 as alleged or admitted the factual allegations in that count. The record indicates defendant pleaded guilty to the charge in count 3 but did not admit all of the factual allegations contained therein. The facts defendant did admit as to count 3 are those contained in the TAHL form as the factual basis for his plea. And in those facts, he did not admit committing a felony offense with another member of his gang. Because defendant did not admit the factual allegations in the charging document as part of his plea, they could not serve as the basis for finding the strike allegation true and increasing his sentence.
The points for those of us that handle criminal defense are that gang cases, gang priors, and Court trials are par for the course. This case give a great map of analysis to compare our cases against in determine whether or not our client will receive double term in prison due to a the prior strike sentence.
