People v. Ortiz CA1/5 ( 2015 )

Filed 5/14/15 P. v. Ortiz CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A139561
v.
CHRISTOPHER LEE ORTIZ, (San Francisco City and County
Super. Ct. Nos. 217471, 219077)
Defendant and Appellant.
A jury convicted appellant Christopher Lee Ortiz of three counts of first degree
burglary (Pen. Code, § 459).1 The trial court determined Ortiz’s 1998 conviction for
second degree felony “burglary of a habitation” in violation of Texas Penal Code section
30.02 (Texas burglary) qualified as a sentencing enhancing “strike” under the “Three
Strikes” law (§§ 667, 667.5, 1170.12) and was a serious felony (§ 667, subd. (a)). The
court sentenced Ortiz to state prison.
Ortiz appeals, contending: (1) the court erred by admitting a July 9, 1997 affidavit
for warrant of arrest and detention (affidavit) to establish the facts of his Texas burglary
conviction; (2) without the affidavit, there was insufficient evidence the Texas burglary
conviction qualified as a sentencing enhancing strike; and (3) the court erred by imposing
a duplicate sentence on a burglary for which he had already been convicted and
sentenced. The People urge us to correct a sentencing error and modify the abstract of
judgment.
1
Unless noted, all further statutory references are to the California Penal Code.
1
We conclude the affidavit contains inadmissible hearsay and the court
prejudicially erred by admitting it. Because the affidavit was the only evidence
establishing the Texas burglary was a strike under California law, there is insufficient
evidence supporting the enhancement finding. We reverse the strike finding and decline
to remand for retrial of the strike allegation. We remand for resentencing as described
below.
FACTUAL AND PROCEDURAL BACKGROUND
The facts of the offenses are not relevant to this appeal. We incorporate some
procedural history from our prior opinion in People v. Ortiz (Oct. 15, 2013, A136117)
[nonpub. opn.] (Ortiz I).)
Ortiz I
In case number 217471, the People charged Ortiz with first degree burglary of
residences on Tennessee and Kansas Streets in San Francisco (§ 459), felony receiving
stolen property (§ 496, subd. (a)), and misdemeanor resisting, obstructing or delaying a
peace officer (§ 148, subd. (a)(1)). The operative information also alleged Ortiz had
suffered two prior felony convictions in Texas for which he had been imprisoned, and
that one of the prior Texas convictions — the Texas burglary — qualified as a sentence
enhancing strike under the Three Strikes law, and was a serious felony under section 667,
subdivision (a)(1). (§§ 667, 667.5, 1170.12.) In May 2012, a jury convicted Ortiz of the
Kansas Street burglary and found true the allegation the offense was first degree
residential burglary. The jury found Ortiz not guilty of misdemeanor resisting,
obstructing or delaying a peace officer and could not reach a verdict on the Tennessee
Street burglary and the receiving stolen property charges.
The jury found the prior conviction allegations true. The prosecution did not
introduce the affidavit into evidence, but the court determined the Texas burglary
conviction qualified as a strike and sentenced Ortiz to state prison. In July 2012, Ortiz
appealed, claiming the evidence was insufficient to establish his Texas burglary
conviction qualified as an “enhancing strike under California law” because “the element
2
of ‘habitation’ is defined differently under California than under Texas law.” (Ortiz I,
supra, at p. 3.)
Ortiz II
In November 2012, and while the appeal in Ortiz I was pending, the People
charged Ortiz with first degree burglary of a residence on Baker Street in San Francisco
(case No. 219077). The People later consolidated that charge with the Tennessee Street
burglary and the receiving stolen property charges from Ortiz I. The operative first
amended consolidated information alleged first degree residential burglary of Tennessee
Street (§ 459), receiving stolen property (§ 496, subd. (a)), and first degree residential
burglary of Baker Street (§ 459). The operative information also alleged a violent felony
burglary allegation in connection with the Tennessee Street burglary (§ 667.5, subd.
(c)(21)) and that Ortiz suffered two prior felony convictions in Texas. Finally, the
operative information alleged the Texas burglary conviction — “the crime of burglary of
a habitation, a felony” — qualified as a sentence enhancing strike under the “Three
Strikes” law and was a serious felony under section 667, subdivision (a)(1). (§§ 667,
667.5, subd. (b), 1170.12.)
In January 2013, the jury found Ortiz guilty of the Tennessee and Baker Street
burglaries and the prosecution dismissed the receiving stolen property charge. Ortiz
waived jury trial on the prior conviction allegations. He urged the court to conclude the
Texas burglary conviction was “not a strike under . . . section 459” because Texas Penal
Code section 30.02 criminalizes the burglary of any building, but in California, first
degree burglary in violation of section 459 “is only a strike when the building is
inhabited.” Ortiz also argued there was no evidence he entered the building with the
intent to commit a felony, as required by section 459. The People argued the Texas
burglary “qualifie[d] as a ‘strike’ for purposes of California law.”
At a January 2013 bench trial on the prior conviction allegations, the prosecution
introduced Exhibits 1 and 2, the “Texas version[s] of a [section] 969(b) packet.” As
relevant here, Exhibit 1 contained a judgment on plea of guilty before court; waiver of
jury trial stating that in May 1998, Ortiz pled guilty to second degree felony “burglary of
3
a habitation” in violation of Texas Penal Code section 30.02 and was sentenced to five
years in the Texas Department of Criminal Justice Institutional Division. According to
the judgment, Ortiz pled guilty “to the charge in the indictment” and the court “having
heard all the evidence for the State and for the defendant, and having heard argument of
counsel for both sides, is of the opinion that there is sufficient evidence to substantiate a
finding of guilty beyond any reasonable doubt[.]” The prosecution also introduced
Exhibit 4 — the grand jury indictment — alleging Ortiz “intentionally and knowingly
enter[ed] a habitation, without the effective consent of . . . the owner thereof, and therein
attempted to commit and committed theft” on July 2, 1997.2
The prosecution also offered Exhibit 3, the affidavit. The prosecutor explained
the document was “an official copy . . . It’s been requested by the District Court of
Travis County, Texas. It’s stamped by the Court.” The affidavit states Olga Reyes
reported the following information to the “APD” on July 2, 1997: “Ms. Reyes was on her
way to work when she stopped by her boyfriend’s house . . . [¶] M[s]. Reyes entered the
house thru [sic] the front door and found an unknown Hispanic male in the house
carrying a plastic bag. The . . . male ran out the back door of the house . . . and left the
area. [¶] . . . The owner of the residence is Jaime[ ] Suarez who came home and found
that clothes, a pistol, stereo equipment and other items where [sic] missing from the
house. [¶] Ms. Reyes viewed a photo lineup containing the photo of . . . Ortiz and she
identified him as the person she saw inside the residence belonging to Jaime Suarez.
Jaime Suarez does not know . . . Ortiz and did not give him permission to enter his
residence and commit theft.” The affidavit is dated July 9, 1997, seven days after the
incident. At the bottom, an unidentified affiant states, “I have good reason to believe and
do believe that . . . Ortiz . . . on or about the 2nd day of July, 1997, did commit the
2
Exhibit 1 also contained an August 1998 judgment revoking unadjudicated
community supervision stating Ortiz had “pleaded TRUE” to the allegation he
“intentionally and knowingly enter[ed] a habitation, without the effective consent of . . .
the owner thereof, and therein attempted to commit and committed theft” on July 2, 1997.
4
offense of burglary of habitation.” The affidavit is sworn before a Texas magistrate as
providing probable cause for the issuance of a warrant for Ortiz’s arrest.
Defense counsel objected to the affidavit, arguing it was not admissible as a
“record of conviction” and contained inadmissible hearsay. The prosecutor disagreed,
claiming the document was part of Ortiz’s “prison packet from the Texas Department of
Criminal Justice[,]” was part of Ortiz’s record of conviction, and was admissible pursuant
to section 969b. The prosecutor and the court discussed whether the affidavit was an
original or a copy, and the prosecutor noted, “I think the original was provided to the
Court in the defendant’s previous trial, but . . . there’s no best evidence rule in the [S]tate
of California.” The People also argued the affidavit was admissible under Evidence Code
section 1280, the hearsay exception for official records. Defense counsel disagreed,
contending the affidavit contained statements of a witness — Olga Reyes — that did not
come within the official records hearsay exception.
The court repeatedly interrupted defense counsel as she tried to articulate her
objections to the affidavit and — as Ortiz points out — made contradictory comments on
the record. The court initially concluded the affidavit “is not the record of conviction. . . .
The record of conviction is contained within People’s 1 and also People’s 2 [the section
969b packets].” Despite its conclusion that the affidavit was not part of the record of
conviction, the court indicated it “intend[ed] to accept it into evidence.” Later, the court
concluded the affidavit was part of the record of conviction because it “reliably
reflect[ed] the facts of the offense for which” Ortiz was convicted. The court, however,
observed the affidavit “does have a second level of hearsay.” Notwithstanding this
observation, the court admitted the affidavit into evidence, but stated it “did not rely on”
the affidavit. Inexplicably, the court found true the prior conviction allegations and
determined the Texas burglary was a strike under California law.
Sentencing in Ortiz II and Our Decision in Ortiz I
In April 2013, the court sentenced Ortiz to 13 years and 4 months in state prison,
comprised of eight years on the Tennessee Street burglary, 32 months on the Baker Street
burglary, and 32 months on the Kansas Street burglary from Ortiz I. The court sentenced
5
Ortiz to an additional five years for the section 667, subdivision (a)(1) strike — the Texas
burglary — but stayed it pursuant to People v. Aubrey (1998) 65 Cal. App. 4th 279. The
court explained: “[p]reviously, the defendant was sentenced to 13 years, four months.
That seems to be to be sufficient to punish him. However, I think it would be an abuse of
discretion . . . to grant the defendant probation. . . .” The April 2013 sentencing minute
order states the sentence on the Kansas Street burglary from Ortiz I was consecutive to
the sentence imposed on the Tennessee and Baker Street burglaries. The April 2013
abstract of judgment also states: “[t]his sentence [is] consecutive to any sentence [Ortiz]
is now serving.”
In May 2013, the court held a hearing to “make it clear that” Ortiz’s sentence on
the Tennessee and Baker Street burglaries was “imposed concurrently with the sentence
that was imposed earlier” on the Kansas Street burglary in Ortiz I. The court explained,
“[m]y understanding of the law is that the earlier sentence [in Ortiz I] stands. . . . The
defendant will serve that sentence. And he will concurrently serve the sentence that I
impose. So when he is done with the first sentence, he will finish it out, if necessary, the
sentence that I impose.”
In response, defense counsel noted the court “had the jurisdiction to resentence”
Ortiz and requested “the prior sentence” from Ortiz I “be vacated.” The court responded,
“Okay.” When the clerk then asked the court to “clarify the record,” the court responded:
“I think the record is very clear that we made earlier.” The May 2013 sentencing minute
order states the sentence on the Tennessee and Baker Street burglaries is “concurrent to
sentence imposed” in Ortiz I but the only abstract of judgment in the record — the April
2013 abstract of judgment — states: “[t]his sentence [is] consecutive to any sentence
[defendant] is now serving.” Ortiz appealed.
In October 2013, this court issued its opinion in Ortiz I. As stated above, Ortiz
challenged the sufficiency of the evidence supporting the trial court’s finding that the
Texas burglary “met the elements of a strike conviction under California law.” (Ortiz I,
supra, at p. 1.) The Attorney General conceded “the evidence submitted by the
prosecution . . . failed to show that the ‘habitation’ which Ortiz entered in Texas qualified
6
as an ‘inhabited dwelling house’ under California law.” We reversed the strike finding
and set it aside, and remanded the matter to the trial court for retrial on the strike. We
stated, “[i]f the People elect not to retry the strike allegation, the court will resentence
Ortiz accordingly.” (Id. at p. 4.)
DISCUSSION
“California’s ‘Three Strikes’ law . . . provides longer sentences for persons
convicted of a felony who have been previously convicted of a violent felony, as defined
in section 667.5, subdivision (c), or a serious felony, as defined in section 1192.7,
subdivision (c). A prior conviction that qualifies as a violent or serious felony is
commonly known as a ‘strike.’ [Citation.] A defendant convicted of a felony who has
one or more strikes must be sentenced for the current offense under the Three Strikes law.
. . . . When a person has been convicted of a serious felony, an additional five year prison
term must be imposed for any prior conviction that qualifies as a serious felony. (§ 667,
subd. (a)(1).)” (People v. Rodriguez (2004) 122 Cal. App. 4th 121, 128 (Rodriguez).)
“A conviction in another jurisdiction qualifies as a strike if it contains all of the
elements required for a crime to be deemed a serious or violent felony in this state.
[Citations.] A conviction qualifies for the five-year enhancement under section 667,
subdivision (a)(1) if it includes all the elements of a serious felony. The prosecution has
the burden of proving beyond a reasonable doubt each element of a prior conviction used
to enhance a defendant’s sentence. [Citation.] In determining the truth of the existence
of a prior felony conviction in another jurisdiction for purposes of the Three Strikes and
other enhancement laws, ‘the [trier of fact] may look to the entire record of the conviction
to determine the substance of the prior foreign conviction; but when the record does not
disclose any of the facts of the offense actually committed, the court will presume that the
prior conviction was for the least offense punishable under the foreign law.’ [Citation.]”
(Rodriguez, supra, 122 Cal.App.4th at pp. 128-129.)
“California law deems first degree burglary a serious felony for the purpose of
sentencing enhancements. [Citations.] Burglary is defined as entry into a building or
certain structures and vehicles ‘with intent to commit grand or petit larceny or any
7
felony.’ (§ 459.) First degree burglary is defined as ‘burglary of an inhabited dwelling
house, . . . which is inhabited and designed for habitation, . . . or the inhabited portion of
any other building. . . .’ (§ 460, subd. (a).) Section 459 defines ‘inhabited’ as ‘currently
being used for dwelling purposes, whether occupied or not.’ ‘“[I]nhabited dwelling
house” means a structure where people ordinarily live and which is currently being used
for dwelling purposes. [Citation.]’ [Citation.]” (Rodriquez, supra, 122 Cal.App.4th at
pp. 131-132.) “Burglary of a structure that is not an ‘inhabited dwelling house’ is
burglary of the second degree . . . and is not a serious felony for purposes of the Three
Strikes and other sentencing enhancement laws.” (Id. at p. 132.)
In Texas, a person commits the crime of burglary when he, “without the effective
consent of the owner . . . [¶] (1) enters a habitation, or a building (or any portion of a
building) not then open to the public, with intent to commit a felony, theft, or an assault;
or [¶] (2) remains concealed, with intent to commit a felony, theft, or an assault, in a
building or habitation; or [¶] (3) enters a building or habitation and commits or attempts
to commit a felony, theft, or an assault.” (Tex. Pen. Code, § 30.02.) Texas law defines
“[h]abitation” as a structure “adapted for the overnight accommodations of persons. . .”
and “[b]uilding” as “any enclosed structure intended for use or occupation as a habitation
. . .” (Tex. Pen. Code, § 30.01.) “[U]nlike California law, Texas law does not require
that the structure be occupied or currently used as a dwelling in order for it to be a
habitation.” (Rodriguez, supra, 122 Cal.App.4th at p. 135.)
Here, the affidavit was the only evidence Ortiz entered an “inhabited dwelling
house” with the intent to commit a felony as defined in sections 459 and 460.
I.
The Affidavit Contains Inadmissible Hearsay and
the Court Erred by Admitting it
Ortiz contends the court erred by admitting the affidavit because it contains
inadmissible hearsay. Evidence used to prove the substance of a prior conviction must be
8
part of the “record of conviction” and admissible under the rules of evidence.3 (See
People v. Lewis (1996) 44 Cal. App. 4th 845, 851.) Even when a document is part of the
record of conviction, it is not automatically admissible. “The normal rules of hearsay
generally apply to evidence admitted as part of the record of conviction to show the
conduct underlying the conviction. [Citation.]” (People v. Woodell (1998) 17 Cal. 4th
448, 458; People v. Myers (1993) 5 Cal. 4th 1193, 1201.) “Thus, a statement in the record
of conviction that is offered to prove the truth of the matter stated must fall within an
exception to the hearsay rule.” (People v. Thoma (2007) 150 Cal. App. 4th 1096, 1101
(Thoma).) We review the ruling admitting the affidavit for abuse of discretion. (People v.
Waidla (2000) 22 Cal. 4th 690, 725.)
The People contend the court properly admitted the affidavit under the official
records hearsay exception in Evidence Code section 1280.4 Evidence Code section 1280
provides: “Evidence of a writing made as a record of an act, condition, or event is not
made inadmissible by the hearsay rule when offered in any civil or criminal proceeding
to prove the act, condition, or event if all of the following applies: [¶] (a) The writing
was made by and within the scope of duty of a public employee. [¶] (b) The writing was
made at or near the time of the act, condition, or event. [¶] (c) The sources of
information and method and time of preparation were such as to indicate its
trustworthiness.”
Even if we assume for the purposes of argument the affidavit was made by a
public employee at or near the time of the incident, the People’s argument fails. Under
3
The California Supreme Court has not defined the term “record of conviction” and
has declined to address “such questions as what items in the record of conviction are
admissible and for what purpose[.]” (People v. Guerrero (1988) 44 Cal. 3d 343, 356, fn.
1; People v. Reed (1996) 13 Cal. 4th 217, 223.) In the trial court, Ortiz argued the
affidavit was not part of the “record of conviction.” He does not, however, make this
argument in his appellate briefs. As a result, we assume, without deciding, the affidavit
was part of the “record of conviction.”
4
We reject the People’s argument — made for the first time at oral argument —
that the affidavit was admissible as offered for a nonhearsay purpose. (Santa Clara
County Local Transportation Authority v. Guardino (1995) 11 Cal. 4th 220, 232, fn. 6.)
9
the official records exception to the hearsay rule, “the statements of those who prepare an
official record concerning their personal observations as well as the observations of
others who were acting pursuant to their official duty to observe and accurately report
facts are admissible. . . . However, if the source of a statement is not a public employee
with a duty to observe and report, the assumed trustworthiness is absent and the statement
is inadmissible.” (Simons, Cal. Evidence Manual (2015 ed.) § 2:67, p. 159 (Simons).)5
Two cases — People v. Baeske (1976) 58 Cal. App. 3d 775 (Baeske) and Alvarez,
supra, 100 Cal. App. 4th 1190 — are instructive. In Baeske, a witness called the police
and reported the license plate number of the robbers’ car. (Baeske, supra, at pp. 779-
780.) The trial court excluded a police report containing this information as inadmissible
hearsay and the appellate court affirmed. The Baeske court concluded the police report
did not come within the official records hearsay exception because the source of the
information in the report “was not a public employee with any duty either to observe
facts correctly or to report her observations accurately to the police department. The trial
5
Cases concerning the business records exception set forth in Evidence Code
section 1271 are instructive because “[a]ny writing prepared by a public employee that
qualifies as a business record would also qualify as an official record. The same showing
of trustworthiness is required for both official and business records.” (Simons, supra, §
2:67, p. 158; see also Gananian v. Zolin (1995) 33 Cal. App. 4th 634, 639-640, fn. 3
(Zolin).) The Law Revision Commission comment to the business records exception
explains: “‘“The chief foundation of the special reliability of business records is the
requirement that they must be based upon the first-hand observation of someone whose
job it is to know the facts recorded. . . . But if the evidence in the particular case discloses
that the record was not based upon the report of an informant having the business duty to
observe and report, then the record is not admissible under this exception, to show the
truth of the matter reported to the recorder.” [Citations.] [¶] Applying this standard, the
cases have rejected a variety of business records on the ground that they were not based
on the personal knowledge of the recorder or of someone with a business duty to report to
the recorder. Police accident and arrest reports are usually held inadmissible because
they are based on the narrations of persons who have no business duty to report to the
police. [Citations.]’ (Cal. Law Revision Com. com., 29B West’s Ann. Evid. Code (1995
ed.) foll. § 1271, pp. 315-316, italics added.)” (Alvarez v. Jacmar Pacific Pizza Corp.
(2002) 100 Cal. App. 4th 1190, 1205, fn. 10, second italics added (Alvarez).)
10
court was correct, therefore, in ruling that the proffered police report was inadmissible
hearsay.” (Id. at p. 781.)
Alvarez reached a similar conclusion. There, plaintiffs in a wrongful death lawsuit
against a restaurant sought to admit “LAPD’s computer dispatch logs for 911 calls made
from the restaurant for the 18 months preceding [the] murder.” (Alvarez, supra, 100
Cal.App.4th at p. 1203.) “Plaintiffs also offered 10 other documents which set forth the
contents of the 911 calls placed by third parties from the restaurant.” A LAPD custodian
of records “testified this data was input into the computer by public employees at the
same time the calls are placed. Through these documents, plaintiffs sought to establish
prior similar acts had occurred at the restaurant because in each phone call, the caller
apparently reported a specific crime or act of violence then taking place. With that
evidence, plaintiffs sought to argue [the] murder was foreseeable so that the restaurant
had a duty to prevent its occurrence.” (Ibid.)
The trial court excluded the evidence as inadmissible hearsay. (Alvarez, supra,
100 Cal.App.4th at p. 1204.) The appellate court affirmed, concluding “the individuals
who placed the 911 calls had no duty to correctly observe and report facts.
Consequently, the required indicia of trustworthiness is lacking, rendering the documents
inadmissible hearsay.” (Id. at p. 1206, fn. omitted; see also People v. Hernandez (1997)
55 Cal. App. 4th 225, 240 (Hernandez) [police reports inadmissible under business records
exception to hearsay rule because they were based on observations of witnesses with “no
official duty to observe and report the relevant facts”].)
Here as in Baeske and Alvarez, there is no indication that Olga Reyes — the
source of the statements in the affidavit — was a public employee with a duty to observe
and report. While the affiant who signed the affidavit may have had such a duty to
accurately report Reyes’s statements, “such requirement does not transform [the
affidavit] into competent, reliable, trustworthy evidence[.]” (Hernandez, supra, 55
Cal.App.4th at p. 240.) We conclude the affidavit does not come within the official
records hearsay exception in Evidence Code section 1280 because it is based on the
observations of a witness who had “no official duty to observe and report the relevant
11
facts.” (Hernandez, supra, at p. 240; see also People v. Ayers (2005) 125 Cal. App. 4th
988, 994.)
The People’s reliance on Lake v. Reed (1997) 16 Cal. 4th 448 (Lake) and Zolin,
supra, 33 Cal. App. 4th 634 does not alter our conclusion. In Lake, the California
Supreme Court determined an unsworn police report fell within the official records
hearsay exception because the officer “wrote the report within the scope of his duty as a
public employee; the report was made near the time of the event in question; and the
source of the information contained in the report—i.e., [the police officer]—and the
method and time of preparation ‘were such as to indicate its trustworthiness.’ [Citation.]”
(Lake, supra, at p. 461.) Zolin held a California Highway Patrol Officer’s sworn report
— which was based on a local police officer’s personal observations — was admissible
under the official records hearsay exception because the local police officer “was acting
pursuant to his duty as a police officer to observe the facts and report them correctly.
Accordingly, [the CHP officer’s] sworn report qualified as an admissible public
employee record even to the extent that it reported [the local police officer’s]
observations.” (Zolin, supra, at p. 641.) In both Lake and Zolin, the source of the
information in the reports was a public employee with an official duty to observe facts
and accurately report them. Reyes had no such duty, and as a result, the People’s reliance
on these two cases is misplaced.
Because the affidavit contained inadmissible hearsay, the court abused its
discretion by admitting it to prove the Texas burglary qualified as a strike offense. It is
well settled “[t]he People must prove each element of an alleged sentence enhancement
beyond reasonable doubt” and can only sustain their burden of showing that a prior
offense qualified for an alleged sentencing enhancement by introducing into evidence
record of prior conviction that meets all “‘threshold requirements of admissibility,’”
(People v. Delgado (2008) 43 Cal. 4th 1059, 1065-1066.) The affidavit was the only
evidence establishing the Texas burglary was a strike under California law and, as a
result, the enhancement finding is not supported by substantial evidence. (Thoma, supra,
12
150 Cal.App.4th at p. 1104.) Accordingly, the proper remedy is to strike the
enhancement. (People v. Williams (1990) 222 Cal. App. 3d 911, 918.)
Ortiz asks that we reverse the strike finding and preclude retrial. The People do
not urge us to remand the matter for retrial. “‘[R]etrial of a strike allegation is
permissible where [as here] a trier of fact finds the allegation to be true, but an appellate
court reverses that finding for insufficient evidence.’ [Citation.] Just because retrial is
permissible does not mean the People have an unqualified right to retrial.” (People v.
Ledbetter (2014) 222 Cal. App. 4th 896, 903.) We decline to permit retrial. “Here, we are
exercising our authority to preclude retrial because ‘[t]he futility and expense’ of remand
for the purpose of retrying the [Texas burglary] strike allegation’” — for the third time —
“‘militates against it.’ [Citations.]” (Id. at p. 904; see also People v. Moore (2006) 39
Cal. 4th 168, 176.)
II.
The Matter Must Be Remanded for Resentencing
As we have stated, the court sentenced Ortiz in April 2013 to 13 years and 4
months in state prison, comprised of eight years on the Tennessee Street burglary, 32
months on the Baker Street burglary, and 32 months on the Kansas Street burglary from
Ortiz I. The court sentenced Ortiz to additional five years for the serious felony
allegation (§ 667, subd. (a)(1)) but stayed the enhancement. The April 2013 sentencing
minute order and abstract of judgment state the sentence on the Kansas Street burglary
from Ortiz I is to be served consecutively to the sentence on the Tennessee and Baker
Street burglaries. In May 2013, court held a hearing to “clarify” that the sentence on the
Kansas Street burglary from Ortiz I was to be served concurrently with the sentence
imposed on the Tennessee and Baker Street burglaries. At that hearing, the court
appeared to vacate the sentence in Ortiz I. The May 2013 sentencing minute order states
the sentence on the Tennessee and Baker Street burglaries is concurrent to sentence
imposed in Ortiz I.
Both parties raise issues with respect to the sentencing. Ortiz contends the court
erroneously imposed a duplicate sentence on the Kansas Street burglary conviction “for
13
which a judgment already existed.” The People argue the court did not impose a
duplicate punishment on the Kansas Street burglary conviction and claim Ortiz was
“resentenced rather than duplicatively sentenced, given that the old sentence [from Ortiz
I] was vacated.” The People, however, argue the court erred by staying the five year
enhancement pursuant to section 667, subdivision (a). The People urge us to modify the
sentence to include the mandatory enhancement — in other words, to “add the 5-year
prior” — and direct the trial court to prepare an amended abstract of judgment reflecting
the correct sentence: 18 years and 4 months in state prison. Ortiz concedes the court
erred “by failing to specify under what conditions the stay of the five year prior would be
lifted” but argues “the proper remedy for such error is remand.”
In light of our conclusion to reverse the strike finding for insufficient evidence, the
People’s argument with respect to the five year enhancement (§ 667, subd. (a)(1)) is
moot. Remand for resentencing is proper. (People v. Calderon (1993) 20 Cal. App. 4th
82, 88.) At the sentencing hearing, the court shall impose a single aggregate sentence for
all three of Ortiz’s burglary convictions, i.e., the Kansas, Tennessee, and Baker Street
burglary convictions in case numbers 217471 and 219077. (See People v. Venegas
(1994) 25 Cal. App. 4th 1731, 1744; see also Couzens & Bigelow, California Three Strikes
Sentencing (2014) Multiple Count and Multiple Case Sentencing § 8.4, p. 8-45 [“the last
court to sentence the defendant must bring all of the prior prison sentences together with
the current crime to create a single term of imprisonment for all cases”].)
DISPOSITION
We reverse the strike finding and set it aside. We preclude retrial on the strike
allegation. We remand the matter for resentencing on the Kansas, Tennessee, and Baker
Street burglary convictions (case Nos. 217471, 219077).
14
_________________________
Jones, P.J.
We concur:
_________________________
Simons, J.
_________________________
Needham, J.
15