Metropolitan News-Enterprise


Friday, October 4, 2019


Page 1


Judge Erred 15 Years Ago in Finding Priors Constituted Strikes

Two Convictions in Colorado Were Improperly Used to Enhance Sentence for Robbery Because Elements of Crimes There Do Not Match Serious or Violent Felony Here, Opinion Says


By a MetNews Staff Writer


The Court of Appeal has granted a writ of habeas corpus to a man who has been contending since 2004, in repeated bids, that two Colorado convictions were improperly used as strikes in boosting his sentence for robbery, holding that his counsel on appeal was remiss in not challenging those enhancements and declaring that the defendant would have prevailed if she had done so.

Justice Dorothy Kim of this district’s Div. Five wrote the opinion, filed Wednesday and not certified for publication. It finds that then-Los Angeles Superior Court Judge Darlene E. Schempp, who retired in 2008, erred in declaring that the out-of-state convictions mirrored each of the elements of a California serious or violent felony, thus qualifying as a strike.

She sentenced defendant Christopher Ewing to imprisonment for 25 years to life, under the Three Strikes law.

Kim blamed San Diego attorney Elizabeth Missakian, who was appointed-counsel on appeal, for not assailing the use of those priors as strikes despite her client’s insistence that she do so.

Ewing’s current appellate lawyer, Brad K. Kaiserman, said yesterday that “but for the imposition of the two strikes, Mr. Ewing would have been released from prison several years ago.”

Requisite Intent Inferred

Ewing, representing himself at trial, argued in 2004 that his Colorado convictions for aggravated robbery do not establish that an element of the California robbery statute—an intent to permanently deprive the owner of property—was met because such an intent is not required in the sister jurisdiction. Schempp rejected the contention, inferring such intent from certified documents showing that the courts in each of the Colorado cases ordered victim restitution.

Div. Five affirmed the conviction on June 8, 2005, and did not discuss the unchallenged enhancements.

Kim noted:

“In the subsequent years, petitioner filed multiple (unsuccessful) habeas petitions arguing, among other things, that his prior Colorado convictions were not serious felonies under California law and that his appellate counsel was ineffective in failing to raise the argument.”

Supreme Court Decision

The California Supreme Court on Dec 21, 2017, in People v. Gallardo, dealt with an enhancement based on the judge’s determination, from a reading of a transcript, as to the nature of a prior offense. Justice Leondra R. Kruger declared:

“While a sentencing court is permitted to identify those facts that were already necessarily found by a prior jury in rendering a guilty verdict or admitted by the defendant in entering a guilty plea, the court may not rely on its own independent review of record evidence to determine what conduct ‘realistically’ led to the defendant’s conviction. Here, the trial court violated defendant’s Sixth Amendment right to a jury trial when it found a disputed fact about the conduct underlying defendant’s assault conviction that had not been established by virtue of the conviction itself.”

Spurred by that decision, Ewing filed a habeas corpus petition in the state high court, seeking the relief denied several times before. The court bounced the matter to the Court of Appeal, instructing it to show cause “why Gallardo should not apply retroactively on habeas corpus to final judgments of conviction, or in the alternative, why appellate counsel did not render ineffective assistance in failing to challenge on appeal the sufficiency of the evidence to support a finding that petitioner’s prior Colorado robbery convictions qualified as serious felonies.”

Kim responded:

“We conclude appellate counsel was ineffective in failing to argue the matter under the law as it existed in 2004 and therefore, we do not reach the question of Gallardo’s retroactivity to final judgments of conviction.”

Infirmity in 2004

Kim examined Schempp’s determination in 2004 as to the effect of the Colorado convictions and found that, under the law then prevailing, the strikes were invalid. The jurist pointed out a Colorado statute authorizes ordering restitution for “any pecuniary loss suffered by a victim.”

She recited the affirmance of “restitution for $2,925 in lost wages, where a theft victim took six and one-half days off work to investigate the theft” and an upholding of “restitution for an extortion victim’s moving expenses, where the move was occasioned by defendant and his at-large accomplice’s extortion threat.”

The jurist said:

“The judgments of conviction proffered by the People in this case do not indicate why petitioner was ordered to pay restitution. Because the documents do not identify the nature or source of the loss to be compensated, and because the People did not offer any other evidence in support of the prior strike allegations, the trial court could not reasonably assume the amounts represented monies or property taken during the robberies themselves.”

Kim declared:

“As there was insufficient evidence to support the trial court’s finding that petitioner’s Colorado convictions qualified as prior strikes, an appellate challenge would have been successful.”

The opinion orders that the finding of priors be stricken and that Ewing be resentenced. Kaiserman said:

“[T]he sentencing court cannot now make a finding that Mr. Ewing suffered the prior strikes because, pursuant to the California Supreme Court’s 2017 decision People v. Gallardo, which restricted the findings a court can make in determining whether a prior conviction qualifies as a strike, the prior Colorado robbery convictions in this case do not qualify as strikes in California. Although the Court of Appeal in its opinion did not address the retroactivity of People v. Gallardo, any new hearing in this case would certainly be subject to People v. Gallardo.”

The case is In re Ewing, B297362.


Copyright 2019, Metropolitan News Company