People v. Hillard CA4/2

Filed 12/2/14 P. v. Hillard CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

THE PEOPLE,

Plaintiff and Respondent, E060101

v. (Super.Ct.No. SWF1302062)

TRAVEON DAMONTE HILLARD, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Mark Mandio, Judge.

Affirmed in part and reversed in part with directions.

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kristen

Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.

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 A jury found defendant and appellant Traveon Damonte Hillard guilty of robbery

(Pen. Code, § 211)1 and burglary (§ 459). Defendant was sentenced to a total term of

11 years in state prison. On appeal, defendant argues that the additional five-year

sentence for a prior serious felony conviction (§ 667, subd. (a)) and the additional three-

year sentence for a prior strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12,

subd. (c)(1)) must be reversed because he neither admitted the priors nor did the trial

court ever find them to be true. We agree and will remand the matter with directions.

I

FACTUAL AND PROCEDURAL BACKGROUND

On July 30, 2013, at around 9:45 p.m., defendant entered a Rite Aid store, grabbed

a cart, and began walking down aisles, placing merchandise into the cart. About 10

minutes later, defendant returned to the front of the store with the cart overflowing. He

started walking towards a register and said, “ ‘You just got jacked,’ ” and quickly pushed

the cart out the front door. When a store employee followed defendant, defendant turned

around and said, “ ‘Don’t come outside. If you come outside, I’m going to shoot you on

[sic] the neighborhood.’ ” The employee was scared and returned to the store. The

incident was captured on the store’s video surveillance.

An officer viewed the surveillance video and recognized defendant based on

previous contacts with him. The store employee identified defendant in a six-pack

lineup.

1 All future statutory references are to the Penal Code unless otherwise stated.

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 On August 29, 2013, an information was filed, charging defendant with robbery

(§ 211) and burglary (§ 459). The information further alleged that defendant had suffered

a prior prison term based on a 2011 receiving stolen property conviction (§ 667.5,

subd. (b)); a prior serious felony conviction, to wit, a 2007 robbery (§ 667, subd. (a)); and

a prior strike conviction, to wit, the same 2007 robbery conviction (§§ 667, subds. (c) &

(e)(1), 1170.12, subd. (c)(1)).

On October 28, 2013, the trial court granted defendant’s motion to bifurcate his

prior convictions. At that time, defense counsel indicated that if defendant were

convicted of the offenses, then defendant may admit the alleged prior convictions and

waive his right to a jury trial on the priors, but not necessarily a court trial.

Two days later, a jury found defendant guilty as charged. Defendant thereafter

admitted to violating the terms of his probation in his two other trailing cases. The court,

at that time, also asked the attorneys to provide the court with the facts and circumstances

on defendant’s prior strike for sentencing purposes. After defendant admitted his

probation violations, the court set the matter for sentencing.

On November 13, 2013, defendant filed a Romero2 motion, requesting the

trial court strike his prior strike conviction. In relevant part, the motion states:

“Defendant . . . waived his right to a trial on the alleged priors and admitted to having a

prior conviction for Penal Code 211 in the County of Los Angeles from 2007 (a Prior

2 A “Romero motion” is a motion to dismiss a strike prior in the interest of justice
under section 1385. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)

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under the 3-Strikes law and also charged as a Serious Prior under PC 667(a).[).]

Defendant . . . also admitted to having a prior conviction for Penal Code section 496d(a)

from the County of Los Angeles in 2011 for which he had served a [prior] prison term

within 5 years of the date[] of the current offense (a prison prior). The Defense makes

this motion for the Court to Dismiss the Strike Prior in this motion, in the interests of

justice.” The motion does not recount the circumstances of defendant’s prior robbery

conviction.

The People filed an opposition to the Romero motion. The People recounted the

circumstances of defendant’s prior robbery conviction in their opposition motion as

follows: “On January 10, 2007, the victim, who was 15 years old at the time, was

walking home from school when the Defendant approached the victim carrying a firearm.

The Defendant stated ‘Where are you from?’ The victim told the Defendant that he

didn’t belong to a gang. The Defendant then stated, ‘Give me everything you got,’ as he

was still holding the firearm towards the victim. The victim, in fear for his life, gave him

his IPOD. The Defendant then stated, ‘Get out of here and never come back.’ ”

The sentencing hearing was held on November 22, 2013. At that time, the trial

court indicated that it had read and considered the Romero motion, the People’s

opposition, and the probation report. The court then heard argument from the parties.

The trial court declined to exercise its discretion to strike defendant’s prior strike

conviction and sentenced defendant to a total term of 11 years in prison as follows: the

midterm of three years, doubled to six years due to the prior strike conviction for the

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robbery offense; plus a consecutive five years for the prior serious felony conviction.

The court stayed a two-year term for the burglary offense and struck the prior prison term

allegation.

II

DISCUSSION

Defendant claims the trial court erred in imposing the five-year prior serious

felony enhancement under section 667, subdivision (a)(1), and doubling the robbery

offense due to a strike prior, because defendant never admitted the prior convictions and

the trial court never found the prior convictions to be true.

Section 1158 requires that “[w]henever the fact of a previous conviction of another

offense is charged in an accusatory pleading . . . the jury, or the judge if a jury trial is

waived, must unless the answer of the defendant admits such previous conviction, find

whether or not he has suffered such previous conviction. The verdict or finding upon

the charge of previous conviction may be . . . ‘[I] find the charge of previous conviction

true’ . . . . If more than one previous conviction is charged a separate finding must be

made as to each.” Here, as the record indicates, defendant neither admitted in open court

the prior convictions nor did the trial court find the prior convictions to be true.

The People, however, seek to avoid the express-finding requirement of

section 1158, arguing that the trial court impliedly found defendant’s prior conviction

allegations to be true when it heard and denied defendant’s Romero motion. The People

also assert that even if the record is ambiguous as to whether the trial court made the true

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findings, defendant was not prejudiced because he admitted that he suffered the prior

convictions in his Romero motion and failed to object to the trial court’s ultimate

sentence. The People rely on People v. Chambers (2002) 104 Cal.App.4th 1047

(Chambers) and People v. Clair (1992) 2 Cal.4th 629 (Clair) to support their position that

the trial court impliedly found the priors to be true.

In Chambers, the defendant was charged with robbery, and a firearm-use

enhancement was alleged. In language substantively identical to section 1158,

section 1158a requires an express finding on such an allegation. Following a court trial,

the defendant was convicted of the substantive offense but the court did not mention the

firearm-use allegation. Nonetheless, the trial court imposed a sentence which included

10 years for the enhancement. The appellate court held that the failure to comply with

the statutory express-finding requirement did not compel striking the firearm-use

enhancement because the court, in imposing a 10-year prison term for the enhancement,

“impliedly” made the required finding. (Chambers, supra, 104 Cal.App.4th at pp. 1048,

1051.) The court noted, however, that “If we had any doubt about the trial court’s

finding, we would resolve it in favor of [the defendant].” (Id. at p. 1051.) The court

further observed that its refusal to construe the court’s silence as a finding of not true

“should not be read as placing our imprimatur on the manner in which this judgment was

rendered. The lack of an express finding is in violation of the penal statutes which dictate

how a [prior conviction] allegation is to be adjudicated. The . . . [failure to make the

required finding represents] the antithesis of how a trial court should proceed.” (Ibid.)

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Moreover, “the People also have an obligation to see that the trial court actually makes an

express finding on a [prior conviction] allegation.” (Ibid.)

The Chambers court based its holding on Clair, supra, 2 Cal.4th 629: “In Clair

the defendant was charged with murder and two counts of burglary. The information

alleged that he had been previously convicted of a serious felony. The murder and

burglary charges were tried to a jury, which returned guilty verdicts. The defendant

waived jury on the prior serious felony allegation and consented to trial by the court.

The trial court did not expressly find that the prior allegation was true, but it imposed a

five-year prison term for the prior serious felony conviction.” (Chambers, supra, 104

Cal.App.4th at pp. 1050-1051.) In Clair, the prosecution raised an argument on behalf of

the defendant that the sentence on the serious felony enhancement had to be set aside

because no finding on the underlying prior conviction had been made. (Clair, at p. 691,

fn. 17.) The Supreme Court disagreed, explaining: “During the penalty phase, defendant

waived trial by jury on the allegation and consented to trial by the court. At the same

time, he stipulated that in deciding the issue, the court could consider the evidence that

the People intended to introduce before the jury in order to prove the conviction as a

circumstance in aggravation under the rubric of a prior felony conviction. Such evidence

was in fact introduced, including what the court referred to as ‘certified copies of [the]

conviction.’ The question was subsequently argued to the court. At sentencing, the court

impliedly—but sufficiently—rendered a finding of true as to the allegation when it

imposed an enhancement expressly for the underlying prior conviction. Contrary to

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defendant’s claim, there is no failure of proof. Neither is there any reason to vacate the

enhancement—and less reason still to disturb the penalty of death.” (Ibid.)

The present matter is distinguishable from Chambers and Clair. In Chambers,

only one enhancement was alleged, so the appellate court could say with certainty that

imposition of sentence on that enhancement implied a true finding. And in Clair,

similarly, such certainty was possible because the court “imposed an enhancement

expressly for the underlying prior conviction.” (Clair, supra, 2 Cal.4th at p. 691, fn. 17.)

Moreover, in Clair, unlike in the instant case, defendant did not stipulate that the court

could consider the statements or evidence presented in defendant’s Romero motion or the

People’s opposition to defendant’s Romero motion to prove the prior conviction

allegations. Even if defendant would have stipulated to the use of the evidence in the

motions, such evidence would be inadmissible as hearsay. For example, in People v.

Reed (1996) 13 Cal.4th 217, the prosecution introduced part of a probation report to help

prove that the defendant personally used a weapon in a prior assault with a deadly

weapon and therefore the prior was a serious felony for sentence enhancement purposes.

The Supreme Court held that the probation report was inadmissible hearsay. (Id. at

pp. 220-221.) The description of the offense in the probation report was, in fact, multiple

hearsay, because “unless the probation officer was a percipient witness to the assault, all

of the narration contained in the excerpt [offered by the prosecution] must have been

drawn from other people’s previous statements.” (Id. at p. 230.) The court explained:

“Aside from the out-of-court nature of the probation officer’s statement itself, the report

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excerpt includes the officer’s assertions that certain events ‘reportedly’ occurred during

the prior assault. Narration of ‘reported’ events is by definition based on the statements

of others. . . . [¶] The report fragment does not identify the declarant or declarants from

whose statements the probation officer drew his factual summary. There is no evidence

the excerpt was based on defendant’s own admissions to the officer, so as to fall within

the hearsay exception for party admissions. [Citations.] Nor does any other exception to

the hearsay rule appear applicable.” (Id. at p. 230; see also People v. Williams (1990)

222 Cal.App.3d 911, 917.)

We reject the People’s assertion that defendant was not prejudiced by the

additional penalty. The court’s error is reversible despite defense counsel’s failure to

object because that failure constituted ineffective assistance of counsel. To establish

ineffective assistance of counsel, defendant must show that counsel’s performance “fell

below an objective standard of reasonableness,” and that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” (Strickland v. Washington (1984) 466 U.S. 668, 688, 694.)

In this case, there is strong evidence that trial counsel, as well as the prosecutor, simply

assumed either defendant had admitted the priors or that the trial court had made true

findings on the prior 2007 robbery and 2011 receiving stolen property convictions.

Counsel’s failure to object at the time of sentencing therein fell below an objective

standard of reasonableness.

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 Further, there is a reasonable probability that if counsel had made an objection

based on the statements contained in the Romero motion and the People’s opposition to

the Romero motion as inadmissible hearsay, the result of the proceeding would have been

different. The statements contained in the motions were inadmissible, so the correct

ruling on an objection would have been to sustain it. Moreover, we cannot excuse the

failure to comply with section 1158 by implying the missing findings.

We now turn to the question of the proper disposition. Defendant contends that

the prior conviction enhancements must be stricken, and the sentences attached to those

priors must be reversed, because the prosecutor presented no evidence, the court made no

findings, and the court never received an admission from defendant as to any of the prior

conviction allegations. This contention is premised, in turn, on the claim that we must

treat the court’s failure to make the required findings on prior convictions as a finding of

not true on those allegations. We disagree.

Defendant relies on People v. Eppinger (1895) 109 Cal. 294 (Eppinger). The trial

court in that case sentenced the defendant as if he had suffered a prior conviction as

alleged, even though the jury’s verdict was silent on that question. The Supreme Court

held “[t]he verdict rendered should be treated as a finding against the defendant upon the

crime charged, and in favor of the defendant upon the question of prior conviction,” and

remanded with instructions to resentence the defendant without regard to the prior

conviction. (Id. at p. 298.) “It was unquestionably error for the jury to have failed to find

upon the issue. The error being shown, the injury will be presumed, unless the contrary

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is clearly made to appear.” (Id. at p. 297.) Eppinger, however, as we explain below, is

inapposite.

Although Eppinger does not do so, subsequent Supreme Court decisions have

made clear the theoretical underpinning of the principle that the failure of a trier of fact to

make a finding on a prior conviction allegation constitutes a “not true” finding. Thus, in

In re Candelario (1970) 3 Cal.3d 702, the court stated, “[r]eference to the prior

conviction must be included in the pronouncement of judgment for if the record is silent

in that regard, in the absence of evidence to the contrary, it may be inferred that the

omission was an act of leniency by the trial court. In such circumstances the silence

operates as a finding that the prior conviction was not true.” (Id. at p. 706; accord,

People v. Mesa (1975) 14 Cal.3d 466, 471.)

In Eppinger, it was a reasonable inference that the failure to make a finding on the

prior conviction was a conscious act of leniency. Here, on the other hand, the inference

that the court’s omission was an act of leniency is nonexistent, because the court declined

to strike defendant’s prior conviction and sentenced defendant to five additional years for

the prior serious felony conviction and doubled defendant’s robbery offense due to his

prior strike conviction. Accordingly, we reject defendant’s contention that the court’s

failure to make findings on the prior conviction allegations constitutes a finding of not

true.

Rather, we will vacate the sentence; remand with directions that the trial court

make the finding required by section 1158 and thereafter resentence defendant. (§ 1260

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[on appeal “the court . . . may, if proper, remand the cause to the trial court for such

further proceedings as may be just under the circumstances”]; see Monge v. California

(1998) 524 U.S. 721, 730 [double jeopardy does not bar retrial of prior conviction

allegation reversed on appeal for insufficient evidence], affirming People v. Monge

(1997) 16 Cal.4th 826, 845; see also People v. Barragan (2004) 32 Cal.4th 236, 239, 241,

243-258 [California Supreme Court held retrial of a prior conviction allegation in

noncapital cases does not violate principles of due process, law of the case, or res

judicata].)

III

DISPOSITION

The judgment of conviction of robbery and burglary is affirmed. The matter is

remanded and the trial court is directed to make a finding as required by section 1158 as

to the truth of the prior conviction allegations and impose sentence in accordance with

those findings.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ
P. J.
We concur:

McKINSTER
J.

CODRINGTON
J.

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