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People v. McCaw

California Court of Appeals, Second District, Fifth Division

July 12, 2016

THE PEOPLE, Plaintiff and Respondent,
v.
MICHAEL GARRETT McCAW, Defendant and Appellant

[REVIEW GRANTED BY CAL. SUPREME COURT]

          APPEAL from a judgment of the Superior Court of Los Angeles County, No. GA082595, Cathryn F. Brougham, Judge.

          Affirmed in part, reversed in part, and remanded.

Page 472

[Copyrighted Material Omitted]

Page 473

         COUNSEL

         Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Michael R. Johnsen and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

         Opinion by Kriegler, J., with Turner, P. J., and Raphael, J.,[*] concurring.

          OPINION

          [203 Cal.Rptr.3d 915] KRIEGLER, J.

          In 1999, defendant Michael Garrett McCaw entered into a plea bargain in New York in which he pleaded guilty to attempted third degree robbery. In 2011, defendant was convicted of attempted manslaughter in California. The trial court found that defendant's 1999 New York conviction for attempted third degree robbery qualified as a serious felony and a strike under California law, and enhanced defendant's sentence accordingly. We have twice reversed the recidivism findings. In a third trial of the recidivism allegations, the court determined that the plea colloquy in connection with the New York conviction demonstrated that the New York offense qualified as a serious felony and strike under California law.

         We again reverse. It is undisputed that the elements of attempted third degree robbery under New York law do not correspond to the elements of robbery as defined in California law. The trial court's finding in the third recidivism trial that the conduct underlying defendant's New York conviction would constitute attempted robbery in California constitutes the type of judicial factfinding prohibited under the Supreme Court's interpretation of the Sixth Amendment in Descamps v. United States (2013) 570 U.S. ___ [186 L.Ed.2d 438');">186 L.Ed.2d 438, 133 S.Ct. 2276] ( Descamps ). After Descamps, the trial court " may not under the Sixth Amendment '" make a disputed" determination " about what the defendant and state judge must have understood as the factual basis of the prior plea ..." . ...' [Citation.]" ( People v. Saez (2015) 237 Cal.App.4th 1177, 1207-1208 [189 Cal.Rptr.3d 72] ( Saez ).) " [W]hen a defendant pleads guilty to a crime, he waives his right to a jury determination

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of only that offense's elements; whatever he says, or fails to say, about superfluous facts cannot license a later sentencing court to impose extra punishment." ( Descamps, supra, 570 U.S. at p. ___ [133 S.Ct. at p. 2288].)

         PROCEDURAL BACKGROUND

         Defendant was convicted by jury in California in 2011 of attempted voluntary manslaughter (Pen. Code, § § 192, 664).[1] The [203 Cal.Rptr.3d 916] jury also found true allegations that defendant used a deadly weapon (§ 12022, subd. (b)(1)) and inflicted great bodily injury (§ 12022.7, subd. (a)). Following a bench trial, the trial court found that defendant's 1999 New York conviction for attempted third degree robbery was a strike under the three strikes law (§ § 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a prior serious felony conviction (§ 667, subd. (a)).[2]

         The trial court sentenced defendant to 21 years in state prison. The sentence included, inter alia, a doubling of the term for attempted voluntary manslaughter due to the strike prior conviction, and a five-year enhancement for the serious felony.

         Defendant argued in his first appeal that the evidence was insufficient to support the trial court's initial findings that his 1999 New York conviction for third degree attempted robbery was a serious felony and a strike under California law. The Attorney General conceded the point, because robbery under California law requires that property be " taken from the other person or (his/her) immediate presence" (CALCRIM No. 1600), whereas under New York law it is not required that the person robbed be in equally close physical proximity to the stolen property. We held the evidence was insufficient to support the findings, reversed the recidivism findings, and remanded for a limited retrial of the prior conviction allegations.

         The prosecution offered additional evidence at the second trial on the recidivism allegations. Among the items presented was a document signed by Michele Jaworski, which stated that on or about November 3, 1997, defendant grabbed her purse and attempted to take it from her. The trial court found that the document containing Jaworski's statement appeared to be " in the form of a charging document" with the signed affidavit of the victim. The trial court again found the prior conviction allegations true.

         In his second appeal to this court, defendant again contended there was insufficient evidence that his New York attempted third degree robbery

Page 475

conviction qualified as a serious felony or a strike for purposes of the California sentencing enhancements. He argued that Descamps, supra, 570 U.S. at p. ___ [133 S.Ct. at p. 2276], decided subsequent to our remand, prohibited the trial court from examination of the entire record of conviction, repudiating our Supreme Court's decision in People v. Guerrero (1988) 44 Cal.3d 343');">44 Cal.3d 343 [243 Cal.Rptr. 688, 748 P.2d 1150], and its progeny. Alternatively, defendant asserted that even under current California law, the evidence was insufficient to support the sentence enhancements. The Attorney General argued California's jurisprudence was unaffected by Descamps, and that the evidence was sufficient under California law. We agreed with defendant that the evidence was insufficient. We explained that Jaworski's statement appeared to be the basis for reference of the case to the grand jury, which ultimately indicted defendant for a variety of offenses including attempted first degree robbery, to which defendant had pleaded not guilty. The case was resolved by guilty plea to attempted third degree robbery. Jaworski's statement was insufficient to demonstrate the basis for defendant's New York conviction because it did not reliably reflect the facts of the offense to which defendant pleaded guilty. We again reversed the recidivism findings, and remanded for a limited retrial of the prior conviction allegations. Because we were able to resolve the issue on the basis of the insufficiency of the evidence, [203 Cal.Rptr.3d 917] we did not consider the impact of Descamps's Sixth Amendment analysis on our state's law.

         At the third court trial on the recidivism allegations, the prosecution for the first time presented the transcripts of defendant's change of plea and sentencing in the New York case. The New York indictment charged defendant in the first two counts with attempted first degree robbery, and in the third count with attempted second degree robbery. He was charged in the fourth and fifth counts with criminal possession of a weapon in the third degree. The discussion of the case settlement in the New York reporter's transcript indicates defendant would plead guilty to attempted third degree robbery " [u]nder the third count" and possession of a weapon under the fifth count. The count in dispute in this appeal--the third count--was resolved with a plea to a lesser offense than the charged attempted second degree robbery. The plea colloquy reveals the following:

         " The Court: You're charged with an incident that occurred on November 3rd, 1997. It's alleged that on that date ... you were engaged in criminal conduct. It's alleged you attempted to forcibly steal property from the person of Michele Jaworski, and furthermore in the course of the matter you did, and subsequent to that, you did possess a loaded firearm and that the firearm was possessed at a location not your home or place of business, that being an operable and loaded firearm.

Page 476

         " With respect to the allegation you forcibly stole property from another person armed with a loaded and operable firearm, ...


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