PEOPLE v. In re Richard Allen Mitchell on Habeas Corpus.

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Richard Allen MITCHELL, Defendant and Appellant. IN RE: Richard Allen Mitchell on Habeas Corpus.

Nos. D028246, D030421.

Decided: January 07, 1999

Michael B. Dashjian, under appointment by the Court of Appeal, Solvang, for Defendant and Appellant. J. Bradley O'Connell, Santa Monica, Cal. Attorney for Criminal Justice as Amicus for Defendant and Appellant. Stephen Gilbert, Santa Monica, Cal. Appellate Defense Counsel as Amicus for Defendant and Appellant. Diane Nichols, San Diego, Appellate Defenders, Inc., as Amicus for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Carl H. Horst and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.

In these consolidated appeal and writ matters, petitioner and appellant Richard Allen Mitchell seeks relief from a judgment entered against him in superior court, sentencing him to a prison term of 12 years pursuant to a limited remand for resentencing under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628.   At his original sentencing, Mitchell received a prison term of nine years for his convictions after jury trial of assault with a deadly weapon, including a three-year enhancement for personal use of a deadly weapon to inflict great bodily harm.  (Pen.Code,1 §§ 245, subd. (a)(1), 12022.7, subd. (a).)  In a court trial, it was also found true as alleged that Mitchell had suffered a prior serious felony conviction (guilty plea to bank robbery, 18 U.S.C. § 2113(a)), for purposes of both a strike prior under the three strikes law and a serious felony five-year enhancement.  (§§ 667, subd. (a)(1), 667, subds. (b)-(i), 1192.7, subd. (c)(19).)   At sentencing, the court stated it had no discretion to strike the prior and, accordingly, Mitchell's base (middle) term for the assault conviction was doubled under the three strikes law (creating a six-year term, plus the three-year enhancement, for a total of nine years).  (§§ 667, subds. (b)-(i), 1385.)   However, at the original sentencing, no mandatory five-year enhancement for the serious felony was imposed under section 667, subdivision (a)(1).

 Mitchell, through appointed counsel, appealed the original judgment and sentence, raising only a restitution fine issue.   In an unpublished opinion (People v. Mitchell (July 26, 1995) D022353, attached as appen.   A), this court affirmed, rejecting the sole argument presented on appeal (the restitution fine was excessive).   Review was denied by the Supreme Court on October 4, 1995.2

In July 1996, a month after the Supreme Court decided People v. Superior Court (Romero), supra, 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628, Mitchell's former appellate counsel wrote to him, suggesting that he consider whether to file a petition for writ of habeas corpus to seek resentencing, with the court requested to exercise its discretion anew on whether to strike his prior serious felony conviction.   Mitchell filed such a petition in propria persona, and the resentencing proceedings were held in January 1997 pursuant to an order to show cause (In re Mitchell (Super. Ct. San Diego County, 1997, No. HC14635)).   At that time, the prosecution pointed out in a sentencing memorandum that no mandatory five-year enhancement for the serious felony had previously been imposed under section 667, subdivision (a)(1).

At resentencing, the trial court declined to strike the prior, selected the lower base term (two years) for the assault, and found a prior serious felony conviction had been sustained.   The court doubled the base term under section 667, subdivision (e), imposed the three-year enhancement for infliction of great bodily injury, and added the mandatory five-year enhancement for the same serious felony under section 667, subdivision (a)(1), for a total sentence of twelve years.

Mitchell then filed this appeal of the judgment after resentencing (D028246), arguing the additional three years over his original nine-year term should not have been allowed under double jeopardy principles, and the People's request that they be added to his original sentence was untimely as not made at the time of the prior appeal.   He also challenges the sufficiency of the evidence to prove the prior serious felony (bank robbery) conviction.   In his related petition for relief on habeas corpus (No. D030421), he makes essentially the same arguments in the context of alleged ineffective assistance of prior appellate counsel.

On March 24, 1998, this court ordered that the appeal and the writ of habeas corpus would be considered together;  by separate order, we have now consolidated them.   We issued an order to show cause in the habeas matter,3 received further briefing, and set the matters for oral argument.   A related motion for an award of costs and sanctions was brought by the Attorney General on the ground that Mitchell's arguments are frivolous.   That too is being considered as part of these proceedings.  (Code Civ. Proc., § 907;  Cal. Rules of Court, rule 26(a).) 4

Subsequently, we determined that the matter should not be calendared for hearing until the United States Supreme Court issued its opinion in an important double jeopardy case, People v. Monge (1997) 16 Cal.4th 826, 66 Cal.Rptr.2d 853, 941 P.2d 1121.   That opinion was issued June 26, 1998, holding there is no double jeopardy bar to retrial on a prior conviction allegation in a noncapital sentencing proceeding.  (People v. Monge, supra, 16 Cal.4th 826, 66 Cal.Rptr.2d 853, 941 P.2d 1121, affirmed sub nom.  Monge v. California (1998) 524 U.S. 721, 118 S.Ct. 2246, 141 L.Ed.2d 615 (hereafter Monge ).)   Supplemental briefing has now been received from the parties on the effect of that case and the matter has been orally argued.

Having reviewed the record in light of all the related arguments, we will grant the petition for writ of habeas corpus on the ground that Mitchell received ineffective assistance of counsel on the prior appeal, in which the issue of the sufficiency of the evidence to support the bank robbery prior conviction was not raised as an appellate argument.   This requires that all the prior conviction findings be vacated and the matter returned to the trial court for retrial of the prior conviction allegations, as it is now clear that such is permitted under the United States Supreme Court opinion in Monge.   However, under state double jeopardy principles, any sentence imposed on remand may not exceed the original nine-year sentence, which was within the authorized range of sentencing at that time.  (People v. Price (1986) 184 Cal.App.3d 1405, 1413, 229 Cal.Rptr. 550.)

Our conclusions in this respect make all the related issues on appeal moot and the appeal will be dismissed, while the petition will be granted on the grounds of ineffective assistance by counsel on appeal.   The motion for costs will be denied.   We decline, however, to reach the issue of whether it was also ineffective assistance for prior appellate counsel to write to Mitchell to suggest he look into requesting a Romero resentencing on his own behalf;  resolution of that issue is not necessary at this stage of the proceedings.

DISCUSSION

In appendix A, our opinion in the prior appeal, the bare background facts of the offense are set out, along with the earlier restitution arguments.   We will state the procedural facts as necessary in connection with our discussion of the issues raised in the current proceedings.   We first summarize and apply the rules for evaluating a claim of ineffective assistance of counsel with regard to both representation on appeal and the proof of priors.   We next address the double jeopardy issues raised with reference to the proper remedy under these circumstances where insufficiency of the evidence is argued concerning the prior conviction finding.   Finally, we resolve the costs motion.

I

Standards for Evaluating Arguably Ineffective Assistance of Counsel

 In his first appeal, Mitchell was represented by counsel.   The applicable standards for such representation have been summarized in this way:

“A criminal defendant has a right not only to counsel on appeal [citation], but to competent counsel on appeal.  [Citation.]  [¶] Our Supreme Court has ‘set forth some of the specific duties which appointed appellate counsel must fulfill to meet his or her obligations as a competent advocate.   These include “the duty to prepare a legal brief containing citations to the [appellate record] and appropriate authority, and setting forth all arguable issues, and the further duty not to argue the case against his client.” ’   [Citations.]”  (People v. Harris (1993) 19 Cal.App.4th 709, 713-714, 23 Cal.Rptr.2d 586.)

Where ineffective assistance of counsel on appeal is claimed, as here, the rules on review are as follows:

“The standard of review applicable to petitioner's claim has two components.  ‘ “First, [petitioner] must show that counsel's performance was deficient;  specifically, he must establish that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms.   Second, he must establish prejudice.   He must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different.   A reasonable probability is a probability sufficient to undermine confidence in the outcome [citations].   Defendant has the burden of proving an ineffective assistance claim by a preponderance of the evidence [citation].” ’  [Citations.]  ‘Courts must in general exercise deferential scrutiny in reviewing such claims;  the reasonableness of defense counsel's conduct must be assessed “under the circumstances as they stood” at the time of counsel's acts or omissions;  “second-guessing” is to be avoided.’  [Citation.]”  (People v. Harris, supra, 19 Cal.App.4th at pp. 714-715, 23 Cal.Rptr.2d 586.)

 It is appropriate to raise an issue of ineffectiveness of counsel on appeal by way of a petition for writ of habeas corpus.  (In re Smith (1970) 3 Cal.3d 192, 202-203, 90 Cal.Rptr. 1, 474 P.2d 969.)  “The defendant need not show he was entitled to a reversal, but only that inexcusable failure of appellate counsel to raise crucial assignments of error [occurred], which arguably might have resulted in reversal.”  (5 Witkin & Epstein, Cal.Criminal Law (2d ed.   1989) Trial, § 2790, pp. 3383-3384.)   Here, that issue takes the form of whether this particular sequence of events included an unreasonable omission to raise an arguable issue on the first appeal, and whether Mitchell was prejudiced.   The matter is appropriate for review at this time as embodied in the final judgment before us.  (People v. White (1987) 196 Cal.App.3d 967, 969, 242 Cal.Rptr. 256.)   We next turn to the viability of Mitchell's claim that his new and prior sentences were imposed despite insufficient evidence to support the findings on the prior serious felony conviction.

II

Insufficiency of the Evidence:  Proof of PriorAIntroduction

At the court trial on the prior serious felony conviction allegation, the evidence presented was a federal prison packet that included two federal district court minute orders showing Mitchell pled guilty to count 2 of the indictment, the offense of robbery of a savings and loan association in violation of 18 United States Code section 2113(a).   The court then found true an allegation as to a serious felony prior under the three strikes law (the bank robbery conviction).  (§ 1192.7, subd. (c)(19).)   At sentencing, Mitchell received the middle term of three years for the assault conviction, doubled pursuant to section 667, subdivision (e)(1), and a three-year enhancement for the great bodily injury finding.   On the first appeal, only the restitution fine imposed was challenged.  (Appen.A.)

At the resentencing, the lower term was imposed for the assault conviction (two years), doubled pursuant to section 667, subdivision (e)(1), due to the serious felony prior conviction and finding.   The three-year enhancement for the great bodily injury finding was again imposed.  (§ 12022.7, subd. (a).)  A five-year enhancement was then added based on the same serious felony prior conviction and finding, pursuant to section 667, subdivision (a)(1).

Mitchell raises in this appeal of the resentencing judgment the argument that insufficient evidence was submitted to prove the prior serious felony (bank robbery) conviction.   He contends this argument should not be deemed waived by the failure to raise it in the prior appeal, as sufficient evidence to support the judgment is a requirement that is essential to support the integrity of the judicial process.  (See People v. Harris (1993) 14 Cal.App.4th 984, 994-995, 18 Cal.Rptr.2d 92.)   He then makes the same argument in the related petition for writ of habeas corpus now before us.   Due to this dual manner of presentation of the claim, we need not decide the applicability of the authority relied on by the People (People v. Senior (1995) 33 Cal.App.4th 531, 538, 41 Cal.Rptr.2d 1) to the effect that no justification has been offered for failing to raise this issue until now.5

 On the merits, the parties agree that the trial court was not presented with additional available information about the nature of the prior serious felony (bank robbery) conviction.   However, on appeal, pursuant to request by the People (and over objection by Mitchell), we have taken judicial notice of additional federal court documents from that file:  the complaint and supporting affidavit;  the indictment;  the federal government's statement of facts in pleadings in opposition to Mitchell's motion to suppress evidence;  and an investigating officer's account of a statement by Mitchell made after the bank robbery, admitting his participation.   These documents show that the federal bank robbery charges included allegations of taking of money by force and violence, with the use of a hand gun.   This is significant because the statute under which Mitchell pled guilty, 18 United States Code section 2113(a), includes two paragraphs defining different forms of bank robbery, as explained in People v. Leever (1985) 173 Cal.App.3d 853, 219 Cal.Rptr. 581 in this manner:

“As noted in People v. Plies (1981) 121 Cal.App.3d 676, 177 Cal.Rptr. 4 (disapproved in People v. Crowson [ (1983) ] 33 Cal.3d 623, 632, fn. 10, 190 Cal.Rptr. 165, 660 P.2d 389, on a point not relevant here), [18 United States Code] section 2113(a) describes two classes of offenses.   Its first paragraph makes it a felony to take or attempt to take property from another by force, fear or intimidation, in certain financial institutions;  its second paragraph makes it a felony to enter or attempt to enter such institutions with the intent to commit a felony or larceny therein.  [ ] Thus, proof that a defendant has been convicted for a violation of [18 United States Code] section 2113(a) (entitled ‘Bank Robbery and Incidental Crimes') does not establish which type of offense was committed.  ( [People v. Plies, supra,] at pp. 679-680, 177 Cal.Rptr. 4.)”  (People v. Leever, supra, 173 Cal.App.3d at p. 872, 219 Cal.Rptr. 581.)

The next question is:  Did the People carry their burden of proof at trial to show that Mitchell suffered a prior conviction under either of these elements of the federal statute, within the meaning of the three strikes law and section 1192.7, subdivision (c)(19) and section 667, subdivision (a)(1), pertaining to the five-year enhancement for a serious felony?

B

Sufficiency of the Evidence:  Standards

 To analyze the effect of the judicially noticed material now presented in connection with the habeas petition, we first set forth the rules for determining the sufficiency of evidence to prove prior convictions.   In People v. Myers (1993) 5 Cal.4th 1193, 22 Cal.Rptr.2d 911, 858 P.2d 301 (Myers ), the Supreme Court summarized the applicable law in this area, as stated in (People v. Guerrero (1988) 44 Cal.3d 343, 355, 243 Cal.Rptr. 688, 748 P.2d 1150), as follows:

“We therefore held that ‘in determining the truth of a prior-conviction allegation, the trier of fact may look to the entire record of the conviction.  [¶] Such a rule is both fair and reasonable.   To allow the trier of fact to look to the entire record of the conviction is certainly reasonable:  it promotes the efficient administration of justice and, specifically, furthers the evident intent of the people in establishing an enhancement for “burglary of a residence”-a term that refers to conduct, not a specific crime.   To allow the trier to look to the record of the conviction-but no further-is also fair:  it effectively bars the prosecution from relitigating the circumstances of a crime committed years ago and thereby threatening the defendant with harm akin to double jeopardy and denial of speedy trial.’  (People v. Guerrero, supra, 44 Cal.3d at p. 355, 243 Cal.Rptr. 688, 748 P.2d 1150, original italics.)”  (Myers, supra, at p. 1200, 22 Cal.Rptr.2d 911, 858 P.2d 301.)

Also in Myers, supra, 5 Cal.4th 1193, 22 Cal.Rptr.2d 911, 858 P.2d 301, the Supreme Court further explained that the trier of fact is allowed, in determining the truth of an allegation of a prior serious felony conviction under section 667, subdivision (a)(1), “to go beyond the least adjudicated elements of the offense and to consider, if not precluded by the rules of evidence or other statutory limitation, evidence found within the entire record of the foreign conviction.”  (Myers, supra, at p. 1201, 22 Cal.Rptr.2d 911, 858 P.2d 301.)

Further developments have occurred in case law to define the “record of conviction” for purposes of proving a prior conviction:  In People v. Reed (1996) 13 Cal.4th 217, 52 Cal.Rptr.2d 106, 914 P.2d 184 (Reed ), the Supreme Court set forth two definitions of that term:  a technical one, as equivalent to the record on appeal, or a more narrow one, “as referring only to those record documents reliably reflecting the facts of the offense for which the defendant was convicted.”  (Id. at p. 223, 52 Cal.Rptr.2d 106, 914 P.2d 184.)   In People v. Houck (1998) 66 Cal.App.4th 350, 356-357, 77 Cal.Rptr.2d 837, this court construed the latter definition as referring to those documents that reliably reflect the conduct for which the defendant was convicted, and that in the case of a jury verdict of conviction, a preliminary hearing transcript is not sufficiently reliable as to what evidence was presented to and relied on by the jury in convicting the defendant, so as to be used to prove prior convictions.

In People v. Rodriguez (1998) 17 Cal.4th 253, 261-262, 70 Cal.Rptr.2d 334, 949 P.2d 31, the Supreme Court held there was insufficient evidence to support the trial court's finding that the defendant's prior conviction for assault, pursuant to a guilty plea, constituted a serious felony under section 1192.7, subdivision (c), and also a strike under section 667, subdivision (d) (1).  (§ 245, subd. (a)(1).)   The People had offered only the abstract of judgment to prove this strike, showing no more than the least adjudicated elements of the prior conviction, even though it would have been possible for the People to go beyond the least adjudicated elements and use the entire record to prove the necessary additional elements.   Accordingly, the trial court's finding of a prior felony conviction was reversed for insufficient evidence.

 Here, Mitchell is arguing that the opinion in Rodriguez, supra, 17 Cal.4th 253, 70 Cal.Rptr.2d 334, 949 P.2d 31, implicitly disapproved the reasoning of an earlier Court of Appeal case, People v. Guerrero (1993) 19 Cal.App.4th 401, 23 Cal.Rptr.2d 803 (Guerrero 1993 ), as applied to the effect of a guilty plea to a charge that has two possible offenses included therein.   Specifically, in Guerrero 1993, the court set forth this summary of a very similar argument as that now made by Mitchell, as follows:

“In any event, defendant contends that there was insufficient evidence that he had previously been convicted of bank robbery within the meaning of section 1192.7, subdivision (c)(19) because there was no evidence as to the manner of the bank robbery.   Defendant reasons that the prosecution had the burden of proving that the taking of the property from the bank in the underlying felony was by means of force and violence.   Defendant argues:  ‘The federal bank robbery statute to which Appellant pled guilty in 1981 contains two prongs under 18 [United States Code, s]ection 2113(a):  the first paragraph describes a bank robbery as a taking or attempt to take by force or violence or by intimidation from the person or presence of another, in language tracked by Penal Code Section 1192.7[, subdivision] (d), while the second paragraph (also denominated 18 [United States Code s]ection 2113(a)), which is an alternative form of bank robbery, states:  [¶] Whoever enters or attempts to enter any bank or any savings and loan association, or any building used in whole or in part as a bank or as a savings and loan association, with the intent to commit in such bank or savings and loan association, or building, or part thereof, so used, any felony affecting such bank or such savings and loan association and in violation of any statute of the United States, or any larceny․’  (Fn.omitted.)   Defendant contends that the evidentiary record before the trial judge was such that the prosecutor never sustained his burden of proving that the taking was not a nonviolent larceny.   Defendant argues:  ‘Thus, there is no evidence in the record to show that Appellant's 1981 conviction was based on the first paragraph of 18 [United States Code s]ection 2113(a) rather than the second or “bank larceny” provision․  The Court was not entitled to presume that Appellant was convicted under the first paragraph of 18 [United States Code s]ection 2113(a) rather than the second.’ ”   (Guerrero 1993, supra, 19 Cal.App.4th at p. 407, 23 Cal.Rptr.2d 803, italics omitted.)

The Court of Appeal disposed of this argument in Guerrero 1993, supra, 19 Cal.App.4th at pages 407-408, 23 Cal.Rptr.2d 803, by relying on the basic rule that a defendant who pleads guilty to a charge (such as bank robbery) has admitted that his conduct fell under the charging statute (there, the first paragraph of 18 United States Code section 2113(a)), and has thus agreed that his conduct conformed to the statutory definition (there, the serious felony of bank robbery under California law).   The court cited the rule, “A guilty plea admits every element of the crime charged.   [Citations.]”  (Guerrero 1993, supra, 19 Cal.App.4th at p. 407, 23 Cal.Rptr.2d 803.)   Thus, the court concluded, “[W]hen defendant pled guilty to the bank robbery charge, he admitted all of the elements of the offense which included a taking by force or a mere larceny.   In other words, defendant admitted culpability under both paragraphs of 18 United States Code section 2113(a) and he may not later relitigate the sufficiency of the evidence of the underlying felony conviction.”  (Guerrero 1993, supra, 19 Cal.App.4th at pp. 408-410, 23 Cal.Rptr.2d 803;  see also People v. Tuggle (1991) 232 Cal.App.3d 147, 153-157, 283 Cal.Rptr. 422 (disapproved on another point in People v. Jenkins (1995) 10 Cal.4th 234, 250-252, 40 Cal.Rptr.2d 903, 893 P.2d 1224).)

The People argue here that Guerrero 1993 remains good law (i.e., that People v. Rodriguez, supra, 17 Cal.4th 253, 70 Cal.Rptr.2d 334, 949 P.2d 31, dealt with a different and distinguishable statutory definition of a prior conviction, assault) 6 and that Mitchell's plea of guilty to the federal bank robbery charge served to admit to every element of the crime, including the portion of the statute that qualifies as a serious felony in California.   They further argue that it was not ineffective assistance of appellate counsel in the first appeal to fail to raise a sufficiency of the evidence challenge to the prior conviction finding because it was reasonable for counsel to assume that a plea to the federal bank robbery statute was sufficient to prove the prior crime constituted a serious felony in California.

 We disagree.   Although the approach of Guerrero 1993, supra, 19 Cal.App.4th 401, 23 Cal.Rptr.2d 803, has the appeal of simplicity, in some ways its analysis begs the question.   To what exactly has the defendant admitted when pleading to the charged offense when the statute defining that offense sets forth two possible factual scenarios, and who bears the burden of demonstrating which scenario applies to certain facts?   When a court trial is being held on the allegation that the defendant suffered a prior serious felony conviction, should the prosecutor not have the burden of proof that the conviction qualifies as a serious/violent felony, and should not the court have the duty to determine what that conviction actually represented, rather than relying on a much earlier and ambiguous guilty plea by the defendant, when there are serious sentencing consequences to such a determination?

 In light of the careful development of the law in the standard of proof of prior serious felony convictions, as seen in the Supreme Court line of cases represented by Guerrero, supra, 44 Cal.3d 343, 243 Cal.Rptr. 688, 748 P.2d 1150, Myers, supra, 5 Cal.4th 1193, 22 Cal.Rptr.2d 911, 858 P.2d 301, and Rodriguez, supra, 17 Cal.4th 253, 70 Cal.Rptr.2d 334, 949 P.2d 31, we are unable to take an expansive view, such as was taken in Guerrero 1993, of the effect of an underlying guilty plea under these particular circumstances.   Rather, we believe that effective assistance of appellate counsel in the prior appeal (which was resolved in 1995), would have included some discussion of the sufficiency of the evidence supporting the prior serious felony conviction as a strike (even though no five-year enhancement had yet been imposed under section 667, subdivision (a)(1) on the same basis, and even though those particular sentencing consequences were not yet recognized).   The federal guilty plea did not per se resolve that issue.   At the time of the prior appeal, the Guerrero 1993 opinion, issued by the Second District, Division Five, was subject to dispute and could have been disagreed with in 1995 by this district and division, had the matter been properly raised in the prior appeal.7  (See also U.S. v. Cazares (9th Cir.1997) 112 F.3d 1391, 1396-1398:  The government must prove the relevant conduct at sentencing by a preponderance of the evidence, and may not rely on a guilty plea as admitting more than the facts essential to the validity of a conviction.)

Accordingly, Guerrero 1993, supra, 19 Cal.App.4th 401, 23 Cal.Rptr.2d 803 is not binding on this court and we need not follow its reasoning.   The next appropriate step is to examine the proof of the prior conviction here under the Supreme Court Guerrero, supra, 44 Cal.3d 343, 243 Cal.Rptr. 688, 748 P.2d 1150 standards.

C

Application of Rules

 In applying these rules, we first note that it is the trier of fact which is given the duty of determining the truth of a prior conviction allegation.  (Myers, supra, 5 Cal.4th at p. 1200, 22 Cal.Rptr.2d 911, 858 P.2d 301.)   To reiterate our task in these proceedings, it is the ruling at the original court trial on the prior conviction allegation that we now review for sufficiency of the evidence with an eye to determining if that ruling should have been challenged in the prior appeal if adequate assistance of counsel had been rendered.

 At the August 23, 1994, court trial on the prior conviction, a federal prison packet that included two federal district court minute orders was introduced to show Mitchell pled guilty to count 2 of the indictment, the offense of robbery of a savings and loan association in violation of 18 United States Code section 2113(a).8  It was then found true as alleged that Mitchell had suffered a prior serious felony conviction (based on the guilty plea to bank robbery, 18 United States Code section 2113(a)), for purposes of a strike prior under the three strikes law.  (§ 667, subds. (b)-(i), 1192.7, subd. (c)(19).)   However, this finding was not supported by the evidence, since it is unclear here, as it was in Guerrero 1993, whether the subsequent conviction “ ‘was based on the first paragraph of 18 [United States Code s]ection 2113(a) rather than the second or “bank larceny” provision․  The Court was not entitled to presume that Appellant was convicted under the first paragraph of 18 [United States Code s]ection 2113(a) rather than the second.’ ”  (Guerrero 1993, supra, 19 Cal.App.4th at p. 407, 23 Cal.Rptr.2d 803.)   Thus, according to the narrow definition of the “entire record” in Reed, supra, 13 Cal.4th 217, 52 Cal.Rptr.2d 106, 914 P.2d 184, the evidence presented was inadequate as not “reliably reflecting the facts of the offense for which the defendant was convicted.”  (Id. at p. 223, 52 Cal.Rptr.2d 106, 914 P.2d 184.)   Even under the broader definition in Reed (the record on appeal), it was not made clear at trial what prior conviction was suffered.

Moreover, for purposes of deciding the sufficiency of the evidence to support the prior conviction finding (again, in the ineffective assistance of counsel context), it does not make any difference that the People have now supplied further evidence of the nature of the prior offense by way of judicial notice material.   This material includes documents containing allegations that the taking of money was done by force and violence, with the use of a handgun, which would clarify the portion of 18 United States Code section 2113(a) that Mitchell violated (and whether this offense qualifies as a serious/violent felony, as opposed to bank larceny under the federal statute).   However, this material was not supplied to the trier of fact, and we are not inclined to make factual findings on appeal in this context.  (People v. Preslie (1977) 70 Cal.App.3d 486, 493, 138 Cal.Rptr. 828;  People v. Jackson (1992) 7 Cal.App.4th 1367, 1371-1373, 10 Cal.Rptr.2d 5;  Larson v. Thoresen (1951) 36 Cal.2d 666, 670, 226 P.2d 571.)

 Even assuming we, not the trial court, should make a finding as to whether the prior conviction satisfies three strike standards, the rule is that judicial notice is taken of the filing and rendering of the documents, not the truth of the matters asserted therein.  (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063-1064, 31 Cal.Rptr.2d 358, 875 P.2d 73;  see 1 Witkin, Cal. Evidence (3d ed.   1986) Judicial Notice, § 102, pp. 88-89.)   Judicial notice at the appellate level is no substitute for fact finding in this context.

 For all the above reasons, we conclude insufficient evidence supported the true finding on the allegation of the prior conviction.   Ineffective assistance of counsel was rendered on the prior appeal when this issue was not raised.   Ordinarily, the relief accorded would be to remand for retrial of the prior conviction allegations.   Before such a retrial can be ordered, however, we must decide the permissible limits of such a procedure under double jeopardy principles and other authority.

III

Permissible Scope of Retrial:  Double Jeopardy Principles and Protection of the Right to Appeal

 At the outset, we first recognize that the United States Supreme Court opinion in Monge v. California, supra, 524 U.S. 721, 118 S.Ct. 2246, 141 L.Ed.2d 615, establishes that there is no double jeopardy bar to retrial on a prior conviction allegation in a noncapital sentencing proceeding.   The remaining issue under state law is whether double jeopardy and due process principles place an upper limit on the punishment that may be imposed at retrial.  (People v. Collins (1978) 21 Cal.3d 208, 216, 145 Cal.Rptr. 686, 577 P.2d 1026.)   As this court explained in People v. Mustafaa (1994) 22 Cal.App.4th 1305, 28 Cal.Rptr.2d 172:

“The prohibition against double jeopardy, California Constitution, article I, section 15, generally prohibits the court from imposing a greater sentence on remand following an appeal.  [Citation.]  In People v. Serrato (1973) 9 Cal.3d 753, 764 [109 Cal.Rptr. 65, 512 P.2d 289] (overruled on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1 [189 Cal.Rptr. 855, 659 P.2d 1144]), our Supreme Court set out an exception to this general rule as follows:  ‘The rule is otherwise when a trial court pronounces an unauthorized sentence.   Such a sentence is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement.’ ”  (People v. Mustafaa, supra, 22 Cal.App.4th at p. 1311, 28 Cal.Rptr.2d 172.)

In Mustafaa, we applied this doctrine to conclude that the rule against double jeopardy applies because in that case, the trial court “imposed a legal aggregate sentence [within the recognized maximum range], only fashioning it in an unauthorized manner [separating base terms from their related enhancements].   The court's error in separating the convictions from their attendant enhancements, though unauthorized by law, does not make the total sentence illegal.   On remand the court may not impose a total sentence more severe than the sentence originally imposed.”  (People v. Mustafaa, supra, 22 Cal.App.4th at pp. 1311-1312, 28 Cal.Rptr.2d 172.) 9

 Originally, Mitchell's argument was that the nine-year sentence was an authorized sentence, and double jeopardy principles would not permit a higher sentence at the proceedings on the Romero resentencing, as was imposed (twelve years).   Mitchell sets forth several ways in which a nine-year sentence could have been legitimately imposed, even allowing for the extra five-year enhancement that was impermissibly omitted at the first sentencing (basically, using the lower term of two years for the assault conviction, doubled, plus the five-year serious felony enhancement, assuming the trial court would have stricken or failed to impose the three-year great bodily injury enhancement;  §§ 667, subd. (a), 1170.1, subd. (h) (since repealed), 1385, subd. (a);  see People v. Bradley (1998) 64 Cal.App.4th 386, 390-392, 75 Cal.Rptr.2d 244).10  He thus argues that in the aggregate, there was no unauthorized sentence here (even though the five-year serious felony enhancement was originally omitted), and under state double jeopardy law, the original sentence of nine years cannot be exceeded by a more severe resentencing.   To do so would arguably violate the principles set forth in People v. Henderson (1963) 60 Cal.2d 482, 495-497, 35 Cal.Rptr. 77, 386 P.2d 677 and People v. Collins, supra, 21 Cal.3d at page 216, 145 Cal.Rptr. 686, 577 P.2d 1026, as summarized in People v. Price, supra, 184 Cal.App.3d at pages 1408-1409, 229 Cal.Rptr. 550:  “ ‘California's double jeopardy rule is designed “to preclude vindictiveness and more generally avoid penalizing a defendant for pursuing a successful appeal.”  [Citation.]’  [Citation.]”  (Fn. omitted.)

In his supplemental briefing, Mitchell adds an argument based on Burks v. United States (1978) 437 U.S. 1, 10-11, 98 S.Ct. 2141, 57 L.Ed.2d 1:  Retrial of the prior conviction allegation should be barred after an appellate finding of insufficiency of evidence, on federal double jeopardy grounds.   In Monge, supra, the United States Supreme Court distinguished the rule of Burks in this way:  “We have held that where an appeals court overturns a conviction on the ground that the prosecution proffered insufficient evidence of guilt, that finding is comparable to an acquittal, and the Double Jeopardy Clause precludes a second trial.   See Burks v. United States, [supra, 437 U.S. at p. 16, 98 S.Ct. 2141].   Where a similar failure of proof occurs in a sentencing proceeding, however, the analogy is inapt.   The pronouncement of sentence simply does not ‘have the qualities of constitutional finality that attend an acquittal.’  [Citations.]”  (Monge v. California, supra, 524 U.S. 721, 118 S.Ct. at p. 2251.)   Mitchell's attempt to invoke Burks is unmeritorious because the holding in Monge is clear that retrial of the prior conviction allegation may properly proceed as a sentencing matter, and the state law rules of double jeopardy, on which we rely, do not go as far as Burks does in this sentencing context.  (Cal. Const., art.   I, § 15.)

 In its supplemental briefing, the Attorney General's Office argues that Mitchell is not entitled to relief on his petition for writ of habeas corpus because he has not made an adequate showing of prejudice;  that there is a reasonable probability that, “ ‘ “but for counsel's unprofessional errors, the result would have been different.   A reasonable probability is a probability sufficient to undermine confidence in the outcome [citations].   Defendant has the burden of proving an ineffective assistance claim by a preponderance of the evidence [citation].”  [Citations.]’ ”  (People v. Harris, supra, 19 Cal.App.4th at p. 714, 23 Cal.Rptr.2d 586.)   Even if the People are ultimately able to prove up the prior conviction on remand, that is no justification for concluding that Mitchell has not been prejudiced by the imposition of a 12-year term, after his original sentencing resulted in a 9-year term, even with the second strike sentencing that occurred both times.   The entire resentencing context must be considered.   Mitchell has made an adequate showing of the prejudice prong in his ineffective assistance of counsel claim.

Based on all of the above, we conclude there is no applicable prohibition upon retrial of this prior conviction allegation.   However, we agree with Mitchell that the original nine-year sentence was within the authorized range, even absent the imposition of the mandatory five-year prior serious felony enhancement.   Consequently, the exception to double jeopardy protection (for an unauthorized sentence) does not apply, and the resentencing proceedings may not result in a sentence greater than nine years, even if the prior conviction allegation is proven up this time and the five-year enhancement imposed pursuant to section 667, subdivision (a).

Accordingly, the appropriate disposition is to return the matter to the trial court for retrial of the prior conviction allegation in accordance with the above rules.   The serious felony enhancement (§ 667, subd. (a)(1)) must likewise be reconsidered.   This makes all the related issues on appeal moot (e.g., the manner in which the sentencing issues were raised by the People in their sentencing memorandum).   The appeal will accordingly be dismissed, while the petition will be granted on the issue of ineffective assistance by counsel on appeal.

IV

Costs

 The Attorney General's Office seeks an award of costs and sanctions due to appellate defense counsel's allegedly inadequate investigation of the particulars of the prior conviction of bank robbery, causing the office to have to make its own independent investigation to oppose Mitchell's claims.   Vigorous opposition to a costs award, on policy grounds, is presented in the various amici curiae briefs filed by the California Appellate Defense Counsel, California Attorneys for Criminal Justice, and Appellate Defenders, Inc., and by appellate defense counsel.

Whatever the merits of this claim of lax investigation, we would have difficulty imposing sanctions on defense counsel where two of the issues he argued have been found meritorious, at least at this juncture (insufficiency of the evidence to support the prior conviction finding, and the maximum potential sentence that may be imposed on remand).   Moreover, difficult and novel issues are presented, and the law is still developing in this area.   For all these reasons, the People's request for costs and sanctions on appeal is denied.  (Code Civ. Proc., § 907;  Cal. Rules of Court, rule 26(a).)

DISPOSITION

The petition for writ of habeas corpus is granted and the matter is returned to the trial court for further proceedings, including vacating the prior conviction findings and conducting a retrial of the prior conviction allegations, with any resulting aggregate sentence limited to nine years in accordance with the views expressed above.   The appeal is dismissed as moot.   The motion for costs and sanctions is denied.   Each party is to bear its own costs on appeal.

APPENDIX A

COURT OF APPEAL, FOURTH APPELLATE DISTRICTDIVISION ONESTATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

RICHARD ALAN MITCHELL,

Defendant and Appellant.

D022353

(Super. Ct. No. SCD103646)

APPEAL from a judgment of the Superior Court of San Diego County, Robert C. Thaxton, Jr., Judge.   Affirmed.

Richard Alan Mitchell appeals the judgment on his assault with a deadly weapon conviction enhanced by infliction of great bodily injury and a prior serious felony conviction.  (Pen.Code, §§ 245, subd. (a)(1), 1192.7, subd. (c)(23), 12022.7, subd. (a), 667, subds. (a), (d) & (e).)

On May 22, 1994, for no apparent justification, Mitchell began hitting a disabled Pickwick Hotel resident with a metal bar.   The blows caused hemorrhage to the victim's eye, temporary loss of vision and ongoing impaired vision.

A jury convicted Mitchell of assault with a deadly weapon and found he inflicted great bodily injury.   Mitchell waived jury on the prior conviction charge and the court found he had a prior serious felony conviction.   It sentenced him to serve nine years in prison:  twice the three-year middle term for assault with a deadly weapon having a prior serious felony conviction, enhanced by three years for inflicting great bodily injury.   The court ordered Mitchell to pay a $1,000 restitution fine.   Mitchell contends the court erred in imposing the restitution fine.

The People contend Mitchell waived his right to appeal this issue through failure to object in the trial court.   In People v. Scott (1994) 9 Cal.4th 331, 356, 36 Cal.Rptr.2d 627, 885 P.2d 1040, the Supreme Court held, “complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal.”   While Scott did not involve the exact claim made here (it involved challenge to the statement of reasons supporting a sentencing choice), the amount of a restitution fine is a discretionary sentencing choice.   As such, objection is waived absent objection in the trial court.   However, the court said the rule would operate prospectively only.  (Id. at pp. 356-358, 36 Cal.Rptr.2d 627, 885 P.2d 1040.)

Penal Code section 1202.4 provides in part:

“(a)(1) It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.

“(2) Upon a person being convicted of any crime in the State of California, the court shall order the defendant to pay a fine in the form of a penalty assessment in accordance with Section 1464.

“(3) The court, in addition to any other penalty provided or imposed under the law, shall order the defendant to pay both of the following:

“(A) A restitution fine in accordance With subdivision (b).

“(B) Restitution to the victim or victims, if any, in accordance with subdivision (f).

“(b) In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine.   The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000) if the person is convicted of a felony, and shall not be less than one hundred dollars ($100), and not more than one thousand dollars ($1,000) if the person is convicted of a $misdemeanor.

“․

“(d) In setting the amount of the fine pursuant to subdivision (b) in excess of the two hundred dollar ($200) or one hundred dollar ($100) minimum, the court shall consider any relevant factors including, but not limited to, the defendant's ability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, and the extent to which any other person suffered any losses as a result of the crime.   Those losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses, such as psychological harm caused by the crime.   Consideration of a defendant's ability to pay may include his or her future earning capacity.   A defendant shall bear the burden of demonstrating lack of his or her ability to pay.   Express findings by the court as to the factors bearing on the amount of the fine shall not be required.”

The amount of a restitution fine is within the trial court's discretion.   (People v. Griffin (1987) 193 Cal.App.3d 739, 741, 238 Cal.Rptr. 371.)   Absent a record to the contrary, it can be inferred the trial court found Mitchell had the ability to pay a $1,000 restitution fine.  (People v. Menius (1994) 25 Cal.App.4th 1290, 1298-1299, 31 Cal.Rptr.2d 15.)   The question is whether the finding is supported by the record.

Here, the probation report reflects Mitchell is a 38-year-old male in good physical health who attended one year of college and is a journeyman carpenter.   He will be serving nine years in prison.   Mitchell's crime was serious, causing hospitalization and possible permanent injury to the victim.

In determining whether an order is supported by substantial evidence, we must review the whole record in the light most favorable to the order and presume in its support the existence of every fact the trier could reasonably deduce from the evidence.   If the evidence permits a reasonable trier of fact to conclude the defendant has the ability to pay the restitution fine imposed, the opinion of a reviewing court that the circumstances may also be reconciled with a contrary finding will not warrant reversal.  (See Jackson v. Virginia (1979) 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560.)   In light of Mitchell's age, physical health, education and previous employment as a journeyman carpenter, and considering the seriousness of his conduct, the trial court did not err by impliedly finding he has the ability to pay the $1,000 restitution fine and committed a serious crime.  (See People v. Gentry (1994) 28 Cal.App.4th 1374, 1377-1378, 34 Cal.Rptr.2d 37;  People v. Frye (1994) 21 Cal.App.4th 1483, 1487, 27 Cal.Rptr.2d 52.)

Judgment affirmed.

/s/ Nares

Nares, J.

WE CONCUR:

/s/ Kremer

KREMER, P.J.

/s/ Haller

HALLER, J.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

2.   At Mitchell's request, this court has taken judicial notice of the record and opinion in his prior appeal, No. D022353.  (Evid.Code, § 459, subd. (a).)

3.   As pointed out by letter from Mitchell's counsel, our order to show cause was erroneously addressed to the superior court, as opposed to the director of the Department of Corrections.   We have received the respondent's return to the order to show cause from the Attorney General's Office and perceive no prejudice from this error;  the defect in notice is now corrected in the service of this opinion.

4.   Amici curiae briefs have been filed on the costs issue by the California Appellate Defense Counsel, California Attorneys for Criminal Justice, and Appellate Defenders, Inc. (Cal. Rules of Court, rule 14(c).)

5.   Moreover, we do not find this petition for writ of habeas corpus to be untimely or unduly repetitious under the standards of In re Clark (1993) 5 Cal.4th 750, 797-799, 21 Cal.Rptr.2d 509, 855 P.2d 729.

6.   The People's argument is that People v. Rodriguez is not controlling because assault with a deadly weapon or by force likely to produce great bodily injury (§ 245, subd. (a)(1)) is not among the offenses listed as qualifying as serious/violent felonies in section 1192.7, subdivision (c);  thus, a plea of guilty to “ ‘ASLT GBI/DLY WPN’ ” would not qualify the offense as a serious felony.  (People v. Rodriguez, supra, 17 Cal.4th at p. 261, 70 Cal.Rptr.2d 334, 949 P.2d 31.)

7.   The subsequent history of Guerrero 1993 shows it has been cited as authority only by opinions that have been depublished or taken up for review.

8.   The superior court clerk informs us that the exhibits in the underlying case have been destroyed due to the passage of time.   However, the parties do not dispute that the federal prison packet only included the two minute orders showing Mitchell pled guilty to count 2 of the indictment, the offense of robbery of a savings and loan association in violation of 18 United States Code section 2113(a).

9.   Also see People v. Craig (1998) 66 Cal.App.4th 1444, 1449-1452, 78 Cal.Rptr.2d 659, holding there were no double jeopardy or due process violations at a resentencing procedure when the defendant received a middle term rather than the lower term for one of his convictions, but the aggregate 19-year sentence did not exceed the original 27-year sentence imposed at the first sentencing.   The court concluded, “[D]ouble jeopardy analysis does not require us to break defendant's aggregate sentence which was no greater than his original sentence into components so as to limit his sentence vulnerability on the burglary conviction to the mitigated term which was originally imposed.”  (Id. at p. 1452, 78 Cal.Rptr.2d 659.)

10.   A great bodily injury enhancement could have been stricken by the court under (former) section 1170.1, subdivision (h).  (People v. Clark (1997) 55 Cal.App.4th 709, 718, 64 Cal.Rptr.2d 193.)   Section 1385, subdivision (a) gives the sentencing court a similar power to strike an enhancement.  (People v. Bradley, supra, 64 Cal.App.4th at p. 391, fn. 2, 75 Cal.Rptr.2d 244.)

HUFFMAN, J.

KREMER, P.J., and NARES, J., concur.