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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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.
1
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.
2
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.)
3
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
5
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.)
6
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
7
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
8
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.
9
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
10
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
11
[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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People v. Hillard CA4/2
Combined Opinion