IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
April 21, 2011
WILLIE RAY JONES, PLAINTIFF,
ROBERT I. BAYSPINGER, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. Plaintiff has consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c).
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's prison trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
By order filed January 7, 2011, plaintiff's complaint was dismissed for failure to state a cognizable civil rights claim, and plaintiff was provided the option to voluntarily dismiss this action, or, was granted leave to file an amended complaint in the unlikely event plaintiff could demonstrate his 1986 or 1989 prior convictions were reversed, expunged, or called into question by a federal writ of habeas corpus.*fn1 Plaintiff has now filed an amended complaint.
Plaintiff was previously informed of this court's obligation to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).
In his amended complaint, plaintiff attempts to demonstrate that his 1986 or 1989 prior convictions have been invalidated, allegedly demonstrating his compliance with Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), such that this action may continue.
A brief synopsis of the underlying proceedings follows. 1. On July 3, 2003, plaintiff was charged with an information alleging assault by means of force likely to produce great bodily injury, and battery with serious bodily injury, and it was further alleged that plaintiff had sustained three strikes under California's Three Strikes law based on plaintiff's three prior serious felony convictions and six prior prison terms. (Dkt. No. 11 at 2.)
2. On October 6, 2003, plaintiff pled nolo contendere to battery with serious bodily injury with an enhancement that he personally inflicted great bodily injury, and an admission of a prior serious felony conviction, in San Joaquin County Superior Court Case No. SF087963A. (Dkt. No. 1 at 14; 11 at 2.) The prosecution moved to dismiss two strikes, two serious felony prior convictions, and the six prior prison terms. (Dkt. No. 11 at 3.) Pursuant to the plea agreement, plaintiff was sentenced to twelve years in state prison.
3. On April 29, 2005, the California Third District Court of Appeal reversed plaintiff's 2003 conviction and remanded the case to the trial court. (Dkt. No. 11 at 29-33.)
4. On May 12, 2006, the trial court addressed scheduling and plaintiff's counsel raised the issue of plaintiff's competence to stand trial. (Dkt. No. 1 at 17.) The prosecutor revoked the plea offer.*fn2 (Id. at 18.)
5. Plaintiff's case went to jury trial, and on May 9, 2007, plaintiff was convicted of assault using force likely to produce great bodily injury and battery inflicting serious bodily injury. (Dkt. No. 11 at 39.) The jury also found true an enhancement allegation that as to each offense defendant inflicted great bodily injury under circumstances involving domestic violence. (Id.)
6. On May 10, 2007, plaintiff was advised of his right to a jury trial on his prior convictions. (Dkt. No. 11 at 41.) Plaintiff waived his right to a jury trial on the prior convictions. (Id.) After a subsequent bench trial, the court found true the enhancement allegations that plaintiff had two prior convictions of serious or violent felony offenses. People v. Jones, 2008 WL 3878347 (Cal. App. 3 Dist. Aug. 22, 2008); Dkt. No. 11 at 42-43.*fn3 Plaintiff was sentenced to 25 years to life in state prison. (Dkt. No. 11 at 47.)
In Heck v. Humphrey, the Supreme Court held that in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.
Heck v. Humphrey, 512 U.S. at 486-87. It is well settled law in California that the striking of a sentence enhancing allegation of a prior conviction has no preclusive effect notwithstanding a determination that it was constitutionally invalid. Gonzalez v. Municipal Court, 32 Cal.App.3d 706, 711, 108 Cal.Rptr. 612, 617 (1973). Motions to strike such an allegation "do not vacate the underlying conviction. . . ." People v. Sumstine, 36 Cal.3d 909, 920, 206 Cal.Rptr. 707, 714 (1984). "The purpose of a motion to strike is to challenge only the present effect of the prior conviction." Id. at 921. If a California trial court grants a motion to strike the allegation of a prior conviction, it cannot be used to enhance the punishment in that criminal proceeding. People v. Allheim, 48 Cal.App.3d Supp. 1, 5-6, 121 Cal.Rptr. 448, 451 (1975). However, if the defendant is subsequently prosecuted on an unrelated offense, the allegation of a prior conviction may be pleaded and the defendant must satisfy the trial court in that proceeding that the prior conviction cannot be used to enhance the sentence. Id. at 5-6, 121 Cal.Rptr. at 451.
A motion to strike a sentence enhancing allegation is not the equivalent of a motion to set aside a plea of guilty and vacate a prior judgment of conviction. Gonzalez, 32 Cal.App.3d at 710-11, 108 Cal.Rptr. at 616. The fact that a defendant has been successful in urging that a sentence enhancing allegation be struck in a subsequent prosecution on an unrelated charge does not affect the validity of the earlier judgment. The defendant is still subject to the onerous effects which flow from a conviction until he "'successfully moves to vacate or set aside the judgment in the original action. . . .'" Sumstine, 36 Cal.3d at 921, 206 Cal.Rptr. at 714-15 (quoting Gonzalez, 32 Cal.App.3d at 712 n.9, 108 Cal.Rptr. at 617 n.9).
Where, as here, plaintiff's conviction, enhanced by a prior conviction, is subsequently reversed, and the prosecution opts to retry the issue of all of plaintiff's prior convictions, the prior prison terms are addressed anew following a subsequent guilty verdict. The 2007 sentencing court was not bound to the 2003 plea agreement. See Hall v. Terhune, 2003 WL 21148489 *6 (N.D. Cal. 2003) ("The sentencing court was not a party to petitioner's earlier agreement and was not bound or restricted by it.") Rather, plaintiff had to persuade the 2007 sentencing court that his prior convictions should not be used to enhance his sentence.
Therefore, plaintiff's claim that the reversal of his 2003 conviction demonstrates his 1989 or 1986 prior convictions were reversed, invalidated or impugned is unavailing.
The reversal of his 2003 conviction addressed the underlying charges of battery based on events that occurred in Stockton, California on February 13, 2001, and had no impact on his prior convictions, other than the extent the prior convictions were used to enhance his sentence based on the 2003 conviction. The Court of Appeals decision reversing the 2003 conviction did not invalidate, reverse, or even address the merits of plaintiff's prior convictions. (Dkt. No. 11 at 29-33.)
Similarly, the October 6, 2003 change of plea hearing also reflects no ruling concerning the merits of either prior conviction. (Dkt. No. 11 at 12-24.) The change of plea hearing demonstrates plaintiff and the prosecution entered a plea agreement by which plaintiff would only admit one prior conviction, the 1989 conviction, in connection with his no contest plea to felony battery with serious bodily injury, in exchange for a sentence of twelve years. (Dkt. No. 11 at 22.) This hearing appears to reflect a concession on the prosecutor's part to refrain from requiring plaintiff to admit the 1986 robbery conviction. The fact that plaintiff did not admit to the 1986 prior conviction in the 2003 plea bargain had no bearing on the validity of the 1986 prior conviction. Any alleged agreement by the 2003 sentencing court and the prosecution to "dismiss" or "strike" plaintiff's 1986 prior conviction (dkt. no. 11 at 8), had no impact on the underlying 1986 or 1989 convictions. Gonzalez, 32 Cal.App.3d at 710-11, 108 Cal.Rptr. at 616. The 2003 plea agreement only meant that the court would refrain from using plaintiff's 1986 prior conviction to enhance plaintiff's sentence in 2003. That 2003 agreement had no binding affect on subsequent sentencing courts.
Plaintiff has failed to demonstrate that his 1986 prior conviction for robbery in San Joaquin County Superior Court (Case No. SC037899), or his 1989 prior conviction for robbery in Los Angeles County Superior Court (Case No. A577402), have been reversed, expunged, or called into question by a federal writ of habeas corpus. Therefore, plaintiff's complaint is barred under Heck v. Humphreys.
Finally, plaintiff asks the court to grant him leave to amend to demonstrate that his 1989 conviction was invalidated. (Dkt. No. 11 at 10.) Plaintiff states "it appears plaintiff's 1989 conviction was reversed or expunged by the state court," citing to plaintiff's Exhibit H. (Dkt. No. 11 at 6.) However, Exhibit H is a writ of habeas corpus for plaintiff's attendance at an evidentiary hearing and does not reflect that the 1989 conviction was invalidated or expunged. In fact, an exhibit provided by plaintiff demonstrates that plaintiff's 1989 conviction was not invalidated. (Dkt. No. 11 at 80.) Plaintiff provides a transcript from the June 18, 2007 judgment and sentencing in San Joaquin County Superior Court Case No. SF087963A. (Dkt. No. 11 at 60.) After some confusion concerning plaintiff's prior convictions and what records had and had not been provided to the state court, the prosecution pointed out that the L.A. prior contained all of the appellate record, and confirmed that plaintiff's priors "were never invalidated." (Dkt. No. 11 at 80.) The Superior Court judge reviewed those records and agreed:
THE COURT: Sure enough. Here it is. You are right.
Apparently, Mr. Jones . . . did file a petition for writ of habeas corpus in Los Angeles to set aside that prior. He did do that, and it was denied. That is what happened. . . . That is in the certified records of the Court. (Dkt. No. 11 at 80.) Plaintiff objected, claiming the "receiving stolen property conviction was not part of the agreement that was understood by the parties in L.A." (Id.) The court replied that plaintiff had filed a motion to try to have that corrected, and it was denied. (Id.) This record demonstrates that plaintiff's 1989 conviction in Los Angeles was not invalidated or overturned. Therefore, granting plaintiff leave to amend would be futile.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's request for leave to proceed in forma pauperisis granted.
2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). All fees shall be collected and paid in accordance with this court's order to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith.
3. Plaintiff's amended complaint is dismissed, without prejudice, and this action is closed.