In re Brown CA4/2

• Court: California Court of Appeal
• Decided: June 28, 2023
• Docket: E071401A
• Status: Unpublished

Opinion

Filed 6/28/23 In re Brown CA4/2 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

E071401 In re BRANDON CRAIG BROWN, (Super. Ct. Nos. WHCJS1800004 FSB039762) on Habeas Corpus OPINION

APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill

and Brian S. McCarville, Judges. Affirmed.

James Anderson District Attorney, Philip P. Stemler, Deputy District Attorney, for

Appellant.

James M. Crawford, under appointment by the Court of Appeal, for Respondent.

I.

INTRODUCTION

The People appeal from the trial court’s orders granting respondent Brandon Craig

Brown’s (defendant) petition for writ of habeas corpus, vacating his sentence, and

resentencing him to 16 years, eight months in prison, which is eight years shorter than his

original sentence. The trial court granted his writ petition because his strike for carjacking as a juvenile does not qualify as a strike under Welfare and Institutions Code 1 2 section 707, subdivision (b) and Penal Code section 667, subdivision (d)(3). The trial

court also concluded that defendant’s trial counsel provided ineffective assistance of

counsel (IAC) by not objecting to the strike during sentencing.

The People argued in their original appeal that the trial court erred in granting

defendant’s writ petition and vacating his sentence because (1) his juvenile carjacking

adjudication qualifies as a strike under 2006 law, (2) the trial court erred in applying

People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo), retroactively, (3) the trial court

exceeded its jurisdiction by vacating the carjacking strike imposed in cases against

defendant in Los Angeles (case No. VA 076709) and Orange County (case No.

03NF1824), (4) defendant’s trial counsel’s failure to object to the carjacking strike did

not constitute IAC, because the record of conviction established defendant’s carjacking

adjudication qualified as a strike, and (5) defendant’s delay in filing his writ petition

prejudiced the People’s ability to oppose it.

On February 25, 2020, we issued a published decision affirming the trial court

orders granting defendant’s writ petition and the judgment. We concluded the trial court

did not err in applying Gallardo retroactively and granting defendant’s writ petition on

the ground defendant’s juvenile carjacking adjudication does not qualify as a strike. We

therefore did not address defendant’s IAC challenge or the People’s other objections.

1 This statute is referred to herein as 707(b) or section 707(b). 2 This statute is referred to herein as 667(d)(3) or section 667(d)(3).

2 On June 10, 2020, the California Supreme Court granted the People’s petition for

review of this court’s decision, and ordered that further action in this matter was deferred

pending consideration and disposition of a related issue in In re Milton (2019) 42

Cal.App.5th 977 (see Cal. Rules of Court, rule 8.512(d)(2)). On August 22, 2022, the

Supreme Court issued its decision in In re Milton (2020) 13 Cal.5th 893 (Milton).

On November 9, 2022, the Supreme Court ordered this case retransferred to our

court with directions to vacate our opinion, rendering it depublished, and to reconsider

the cause in light of Milton, supra, 13 Cal.5th 893. (In re Brown on Habeas Corpus

(2022) 519 P.3d 333) We vacated our original opinion on November 15, 2022, and the

parties filed supplemental briefs limited to the matters arising after this court’s previous

opinion was filed.

We now consider the matter in light of Milton, supra, 13 Cal.5th 893, and in

accordance with Milton, hold that Gallardo, supra, 4 Cal.5th 120, does not apply

retroactively. We further conclude that the trial court did not err in granting defendant’s

writ petition and vacating his sentence because defendant’s juvenile carjacking

adjudication does not qualify as a strike and his attorney committed IAC by not objecting

to the strike. In addition, we conclude the delay in defendant bringing his writ petition in

the trial court was not unreasonable or unduly prejudicial. We also conclude the trial

court did not exceed its jurisdiction by vacating the carjacking strike entered in the Los

Angeles (case No. VA 076709) and Orange County (case No. 03NF1824) cases. We

therefore affirm the trial court writ petition order and judgment.

3 II.

FACTS AND PROCEDURAL BACKGROUND

A. Prior Los Angeles Juvenile Court Carjacking Adjudication

On October 2, 2001, the People filed in Los Angeles County juvenile court

(LAJC), a petition under Welfare and Institutions Code section 602 (case No. VJ22377).

The People alleged in count 1 that on September 29, 2001, when defendant was 17 years

old, he committed the crime of carjacking (Pen. Code, § 215, subd. (a)) by unlawfully

taking the victim’s car by force or fear. The People alleged in count 2 that on the same

date as the count 1 offense, defendant committed the crime of unlawful driving or taking

of a vehicle (Veh. Code, § 10851, subd. (a)) by unlawfully driving and taking a vehicle

without the consent of the owner and with the intent to permanently or temporarily

deprive the owner of title to, and possession of, the vehicle.

On October 3, 2001, the court referred the LAJC matter to the probation

department for a section 654 pre-plea report, with the matter continued to October 17,

2001. The Los Angeles County probation report dated October 17, 2001, summarized the

facts of the carjacking offense. The report also included a victim statement, a statement

of defendant’s criminal history as a juvenile, defendant’s personal history, interested

party statements, a statement evaluating defendant’s conduct under supervision, and a

statement of the probation officer’s analysis and recommended plan for defendant of

placement with the former California Youth Authority (CYA).

4 During the December 18, 2001, adjudication and disposition hearing, the LAJC

sustained the juvenile petition after defendant admitted both counts. The minute order

states that the LAJC “read and considered the Probation Officer’s Report filed herein and

said report is admitted into evidence by reference.” The LAJC ordered defendant

detained in juvenile hall pending suitable placement. In April 2002, after the LAJC

reviewed the probation report, the LAJC ordered defendant placed in a six-month camp

program.

B. Defendant’s 2003 Crime Spree

After his release from the CYA, defendant committed numerous crimes as an adult

in March, April, and May 2003, in the counties of Los Angeles, Orange, San Bernardino, 3 and Riverside.

On August 8, 2003, defendant pled guilty and was convicted as an adult in Los

Angeles County Superior Court (LASC) of two counts of second degree robbery

committed in 2003 (LASC case No. VA 076709). The LASC sentenced defendant on

October 20, 2003, to 12 years in prison, with the court finding defendant had one or more

strikes. One of the alleged strikes was for the 2001 juvenile carjacking adjudication.

3 Defendant also pled guilty and was convicted in Riverside Superior Court (RCSC) in 2007, of one count of second degree robbery committed in 2003 (RCSC case No. RIF110773) and was sentenced in 2007 to 13 years in prison. The Riverside case is not relevant to this appeal because, unlike the other criminal cases mentioned in this appeal, the juvenile carjacking adjudication was not included as a strike in the Riverside criminal case.

5 On April 27, 2004, defendant pled guilty and was convicted in Orange County

Superior Court (OCSC) of two counts of second degree robbery committed in 2003

(OCSC case No. 03NF1824). On May 20, 2004, the OCSC sentenced defendant to two

years in prison, with the court finding defendant had one or more strikes. One of the

alleged strikes was for the 2001 juvenile carjacking adjudication.

C. San Bernardino Superior Court Case

In San Bernardino Superior Court (SBSC) case No. FSB039762, the People filed

an information in July 2004, charging defendant as an adult with carjacking on March 27,

2003 (Pen. Code, § 215, subd. (a); count 1), attempted second degree robbery on April

16, 2003, and May 15, 2003 (Pen. Code, §§ 664, 211; counts 2, 8), and second degree

robbery on May 1, 4, and 15, 2003 (Pen. Code, § 211; counts 3-7, 9-10). The information

further alleged as to count 1 that defendant personally used a deadly weapon (Pen. Code,

§ 12022, subd. (b)(2)). The information also alleged defendant suffered a prior serious

and/or violent felony conviction (Pen. Code, §§ 667, subd. (d), 1170.12, subd. (b)). The

alleged strike was for the juvenile carjacking adjudication committed in Los Angeles in

2001 (LAJC case No. VJ22377).

1. Guilty Plea in the SBSC Case

On May 12, 2006, defendant withdrew his not guilty plea in the SBSC case and

entered a guilty plea to counts 1 through 8, and 10 of the information. Defendant also

admitted the enhancement allegations. Defendant and his attorney, Earl Carter, signed a

plea agreement form, agreeing to an aggregate sentence of 20 years eight months, to run

6 consecutive to a four-year term imposed in LASC case No. VA076709, for a total prison

term of 24 years eight months.

2. Sentencing in the SBSC Case

On June 5, 2006, the SBSC sentenced defendant on counts 1 through 8, and 10, to

an aggregate term of 24 years eight months, in accordance with defendant’s guilty plea

on May 12, 2006, with the court finding defendant had two strikes (Pen. Code,

§§ 1170.12, subd. (c)(1), 667, subd. (e)(1)). The court ordered count 9 dismissed

pursuant to defendant’s plea bargain. Defendant’s aggregate sentence included a

consecutive four-year prison term imposed in the LASC case.

By letter dated December 27, 2016, Jean Harper, correctional case records analyst

of the California Department of Corrections and Rehabilitation (CDCR), notified the

SBSC that a review of defendant’s sentencing documents in the SBSC case revealed that

the abstract of judgment and minute order may have contained numerous enumerated

sentencing errors. Harper suggested that the trial court correct the sentence. In January

2017, the SBSC read and considered the CDCR letter and ordered that the abstract

remain unchanged, as submitted.

By an interoffice memorandum dated February 1, 2017, San Bernardino County

Deputy Public Defender Tammy Higgins stated that she was asked to review defendant’s

juvenile court file to determine whether his juvenile carjacking adjudication qualified as a

strike. Higgins determined that it did not qualify as a strike because it was not a crime

listed in section 707(b). Higgins noted defendant admitted violating Penal Code section

7 215, subdivision (a) (carjacking), but did not admit using a weapon when committing the

crime, and there was no such allegation in the LAJC petition. Higgins further noted that

defendant’s plea agreement in the SBSC case showed that defendant pled to the entire

complaint and admitted that he suffered a strike prior. In addition, defendant’s sentence

for the charges appeared to be miscalculated. Upon investigating the matter further,

Higgins discovered the December 27, 2016, CDCR letter. Both the CDCR and Higgins

concluded the court miscalculated defendant’s sentence. The court, nevertheless,

concluded there was no error and therefore did not amend the abstract of judgment.

Defendant thereafter moved to modify his sentence. The trial court ordered

transcripts of the 2006 SBSC hearings but was informed that the transcripts were

unavailable or no longer existed. The matter was continued and the court obtained a copy

of the transcript of the June 5, 2006, sentencing hearing but was told there was no

transcript of the May 12, 2006, plea hearing. After numerous continuances, on July 21,

2017, the trial court heard defendant’s motion to modify his sentence. During the

hearing, the court and parties concluded defense counsel should proceed with seeking

modification of defendant’s sentence by filing a writ petition.

D. Defendant’s Petition for Writ of Habeas Corpus

On January 5, 2018, defendant filed in SBSC a petition for writ of habeas corpus

(case No. WHC1800004), alleging sentencing error was committed in SBSC case No.

FSB039762. Defendant challenged the trial court’s determination that his 2001 juvenile

carjacking adjudication qualified as a strike. Defendant alleged the juvenile carjacking

8 adjudication did not qualify as a strike because there was no showing or admission that

the carjacking offense was committed with a dangerous or deadly weapon. Defendant

also argued his attorney provided IAC by failing to challenge the strike. Defendant

requested the trial court to vacate his plea, conviction, and resulting sentence, and release

him or, alternatively, conduct an evidentiary hearing on the strike.

Defendant attached to his writ petition a computer printout of the trial court’s

register of actions; a reporter’s transcript of the June 5, 2006, sentencing hearing in the

SBSC case; the LAJC petition; the December 27, 2016, CDCR letter notifying the court

that defendant’s sentence in the SBSC case appeared to be improper; the February 1,

2017, public defender memorandum concluding defendant’s sentence was improper

because his juvenile carjacking adjudication did not qualify as a strike; and defendant’s

declaration supporting his writ petition.

Defendant stated in his supporting declaration that, after consulting with his

attorney on May 12, 2006, and upon his attorney’s advice, he pled guilty in the SBSC

case and admitted the juvenile carjacking strike allegation. In discussing the proposed

plea bargain, defendant’s attorney erroneously advised him that it made no difference that

he was a juvenile when he committed the carjacking prior. It still qualified as a strike,

and if defendant went to trial, he would be exposed to a maximum sentence of 45 years

and four months. For these reasons, defendant accepted the plea deal.

Defendant further stated in his declaration that it was not until recently that he was

told his juvenile carjacking strike might be improper. Upon learning this, defendant

9 immediately sought legal assistance. His previous attorney never told him that his

juvenile carjacking adjudication did not qualify as a strike unless it was alleged and

proven that he was armed with a dangerous or deadly weapon when he committed the

carjacking. Around December 27, 2016, defendant received the CDCR letter indicating

there were discrepancies in his sentence. Defendant immediately contacted the San

Bernardino County Public Defender’s Office. Deputy Public Defender Higgins told

defendant on February 1, 2017, that his juvenile carjacking adjudication did not qualify

as a strike because there had been no allegation or proof that he used a dangerous or

deadly weapon during the juvenile carjacking offense.

In April 2018, the SBSC issued an order to show cause (OSC) as to why defendant

should not be allowed to withdraw his plea in the SBSC case. The court’s order detailing

the basis of its OSC states that “[t]he oral pronouncement of judgment is confusing as set

forth in the reporter’s transcript. The trial court made several mathematical mistakes and

misspoke regarding the Los Angeles case number. . . . The abstract is in agreement with

the plea as to the total of 24 years eight months, but has other obvious errors that do not

conform with the trial court’s oral pronouncement and appear in violation of Penal Code

section 1170.1, subdivision (a). The abstract makes no mention of [defendant’s] Los

Angeles case, case [N]o VA076709.”

In addition, the court ordered the People to show cause as to why defendant should

not be allowed to withdraw his plea in the SBSC case or alternatively be resentenced as if

10 he did not have a strike, on IAC grounds and because defendant did not enter his plea

voluntarily and knowingly with the full understanding of its consequences.

E. The People’s Return to Defendant’s Writ Petition

In June 2018, the People filed a return (Return) to the writ petition, asserting that

defendant provided an incomplete record, his juvenile carjacking prior qualified as a

strike, his IAC objection lacked merit, his guilty plea was knowing and voluntary, and his

writ petition was untimely and barred by laches. The People attached to their Return a

copy of the probation report dated October 17, 2001, filed in the LAJC juvenile

carjacking case.

The People also filed a declaration by defendant’s previous attorney, Earl Carter,

stating that he did not recall his investigation in the SBSC case or his advisements to

defendant regarding defendant’s maximum exposure in the case. Carter added that it was

his custom and practice to investigate the validity of all allegations, advise his clients of

them, and advise his clients regarding their maximum exposure when they were offered a

plea bargain. Carter further stated he gave his case files and notes to defendant’s current

defense attorney.

Also attached to the People’s Return were affidavits of unavailability of the

reporter’s transcript in the juvenile carjacking case, for the LAJC hearing on December

18, 2001; and the reporter’s transcripts in the SBSC case, for hearings on January 6,

2006, April 19, 2006, and May 12, 2006.

11 F. Defendant’s Traverse to the People’s Return

In July 2018, defendant filed a traverse to the People’s Return, denying that his

juvenile carjacking adjudication qualified as a strike, because there was no admission or

allegation that he was armed or used a dangerous or deadly weapon during commission

of the carjacking. Defendant further objected to the court considering the LAJC

probation report because it constituted inadmissible hearsay and was not part of the

record of conviction or plea in the juvenile carjacking case. Defendant also argued IAC

and that his guilty plea and admissions in the SBSC case were not made knowingly and

intelligently.

G. The Trial Court’s Ruling on Defendant’s Writ Petition

After reviewing the writ petition, return, and traverse, the trial court concluded an

evidentiary hearing on defendant’s writ petition was not required because there were no

disputed factual questions as to matters outside the trial court record. On August 31,

2018, the trial court heard oral argument on defendant’s writ petition for modification of

his sentence. After hearing oral argument, the trial court granted defendant’s writ

petition and stayed the ruling for one week to allow the People time to decide how they

wished to proceed. The following week, on September 5, 2018, the trial court again

granted defendant’s writ petition and ordered him to be resentenced in the SBSC case

based on the terms of his original plea, with the exception that resentencing was not to

include sentencing on the juvenile carjacking strike.

12 The SBSC explained in a detailed written order that defendant’s writ petition was

granted on the following grounds: (1) defendant’s attorney committed IAC by failing to

object to the juvenile carjacking strike; (2) Gallardo, supra, 4 Cal.5th 120, applied

retroactively to the instant case; (3) the trial court could not rely on the probation report

when determining whether defendant’s juvenile carjacking adjudication qualified as a

strike; (4) even if the probation report could be considered, it did not provide proof

beyond a reasonable doubt that defendant used a weapon when committing the juvenile

carjacking offense; and (5) the People’s untimeliness/laches argument lacked merit

because there was no prejudice caused by defendant’s delay in seeking writ relief and the

delay was not unreasonable.

H. Resentencing

On September 7, 2018, the trial court in the SBSC case resentenced defendant in

accordance with its order granting defendant’s writ petition. Because the court found that

the juvenile carjacking adjudication did not qualify as a strike, defendant’s sentence was

reduced from 24 years eight months to 16 years eight months. The trial court resentenced

defendant to an aggregate term of 11 years in the SBSC case (case No. FSB039762), and

five years eight months for the two subordinate cases (LASC case No. VA 076709 and

OCSC case No. 03NF1824), upon finding the juvenile carjacking adjudication also did

not qualify as a strike in the LASC and OCSC cases. The People timely filed notices of

appeal of the trial court order granting defendant’s writ petition and resentencing order.

13 On September 21, 2018, the habeas court resentenced defendant and modified the

sentence again, adding sentencing on Orange County case no. 03NF1824. The habeas

court explained it was modifying the sentence because the CDCR notified the court that it

had incorrectly sentenced defendant. After correcting the sentence, the habeas court

again imposed an aggregate sentence of 16 years 8 months.

III.

COMPLIANCE WITH HABEAS WRIT PETITION REQUIREMENTS

Defendant requested the trial court to issue a writ of habeas corpus vacating his

guilty plea, juvenile carjacking strike, enhancement admissions, and sentence imposed in

the SBSC case. The People appeal the trial court’s order granting defendant’s writ

petition request to vacate the carjacking adjudication strike and resentence defendant.

Under our state Constitution, a person improperly deprived of his or her liberty has

the right to petition for a writ of habeas corpus. (Cal. Const., art. I, § 11; People v.

Duvall (1995) 9 Cal.4th 464, 474 (Duvall).) A petition for a writ of habeas corpus

collaterally challenges a presumptively final criminal judgment. Therefore, the petitioner

bears a heavy burden to plead and prove grounds for relief. (Duvall, supra, at p. 474; In

re Gay (2020) 8 Cal.5th 1059, 1072.)

One of the common uses of habeas by a criminal defendant is to challenge an

unauthorized sentence. (People v. Allison (2019) 39 Cal.App.5th 688, 699.) “It is well

established that ‘[a] plea bargain that purports to authorize the court to exercise a power it

does not have is unlawful and may not be enforced.’ [Citation.] . . . [T]here is no such

14 disagreement about the rule that an unlawful sentence can be corrected by the trial court

at any time.” (Id. at p. 699; see also In re Spears (1984) 157 Cal.App.3d 1203, 1210 [“a

claim of incompetence of appellate counsel based on failure to raise the issue of

insufficiency of the evidence is cognizable in a habeas corpus proceeding.”].)

When reviewing such a petition, the trial court “evaluates it by asking whether,

assuming the petition’s factual allegations are true, the petitioner would be entitled to

relief. [Citations.] If no prima facie case for relief is stated, the court will summarily

deny the petition.” (Duvall, supra, 9 Cal.4th at pp. 474-475.) If the court finds the

factual allegations establish a prima facie case for relief, the court will issue an OSC. (Id.

at p. 475.) When an OSC issues, it is limited to the claims raised in the writ petition and

the factual bases for those claims. Issuance of an OSC indicates the court’s preliminary

assessment that the petitioner would be entitled to relief if the petitioner’s factual

allegations are proved. (Ibid.)

The custodian of the confined person, the People, shall then file a responsive

pleading, called a “return,” justifying the confinement. (Pen. Code, § 1480; Duvall,

supra, 9 Cal.4th at p. 475.) The return shall allege facts establishing the legality of the

petitioner’s custody and respond to the petition allegations that the confinement is

unlawful. (Duvall, supra, at p. 476.) In addition, the return should also “provide such

documentary evidence, affidavits, or other materials as will enable the court to determine

which issues are truly disputed.” (In re Lewallen (1979) 23 Cal.3d 274, 278, fn. 2;

accord, Duvall, supra, at p. 476.) In response to the return, the petitioner may file a

15 traverse, which either admits or disputes the return’s factual allegations responsive to the

petition. (Duvall, supra, at p. 477.)

In the instant case, the parties and trial court properly followed these procedures.

IV.

THE CARJACKING PRIOR ADJUDICATION

DOES NOT QUALIFY AS A STRIKE

The People contend the trial court erred in granting defendant’s writ petition based

on the 2001 juvenile carjacking adjudication not qualifying as a strike. The People argue

the 2001 probation report, which the People argue is part of the record of conviction,

establishes that the carjacking offense qualifies as a strike. We disagree.

A. Law Applicable to Strikes Based on Juvenile Adjudications

Under 667(d)(3), “[a] prior juvenile adjudication shall constitute a prior felony

conviction for Three Strikes purposes only if the prior offense is listed in Welfare and

Institutions Code section 707 [subdivision] (b)” and is classified as a “serious” felony

under Penal Code section 1192.7, subdivision (c), or as a “violent” felony under Penal

Code section 667.5, subdivision (c). (People v. Garcia (1999) 21 Cal.4th 1, 13 (Garcia).)

In the instant case, defendant was charged in 2001, as a juvenile, with carjacking

(Pen. Code, § 215, subd. (a)) and unlawful driving or taking of a vehicle (Pen. Code,

§ 10851, subd. (a)). These crimes are not included in the 707(b) list of offenses that

qualify as a strike. After the LAJC admitted into evidence the probation report,

16 defendant admitted the charges and the juvenile court sustained the juvenile petition

charges.

B. Defendant’s Carjacking Offense Does Not Qualify as a Strike

The People agree that a section 215(a) carjacking offense, when committed by a

juvenile, does not qualify as a strike. However, the People argue defendant’s juvenile

carjacking adjudication qualifies as a strike under 707(b)(25), because the facts stated in

the probation report establish that defendant committed the crime of “Carjacking, as

described in [s]ection 215 of the Penal Code, while armed with a dangerous or deadly

weapon.” (Welf. & Inst. Code, § 707, subd. (b)(25), italics added.) Such a crime is

included in the list of juvenile crimes qualifying as a strike. (Welf. & Inst. Code, § 707,

subd. (b).) The trial court rejected the People’s argument, concluding that Gallardo,

supra, 4 Cal.5th 120, applied retroactively, and therefore the trial court could not make

the factual weapon-use finding based on the probation report under Gallardo.

In Gallardo, supra, 4 Cal.5th 120, the California Supreme Court partially

overruled People v. McGee (2006) 38 Cal.4th 682 “insofar as it authorizes trial courts to

make findings about the conduct that ‘realistically’ gave rise to a defendant’s prior

conviction.” (Gallardo, supra, at p. 128.) The People in Gallardo alleged the defendant

had a prior felony conviction for assault in violation of former Penal Code section 245,

subdivision (a)(1). At the time of the prior conviction, a defendant could violate that

statute by either committing an assault with a deadly weapon or by means likely to

produce great bodily injury. The former is a serious felony (see § 1192.7, subd. (c)(23) ),

17 but the latter is not: “If defendant committed assault with a deadly weapon, the prior

conviction counted as a strike; if she committed assault by any means of force likely to

produce great bodily injury, it did not.” (Gallardo, supra, at p. 125.) Based on the

transcript of the preliminary hearing in the prior assault case, during which the victim

testified the defendant used a knife, the trial court found that the prior conviction was for

assault with a deadly weapon. (Id. at p. 126.)

The Gallardo court held that, because the record of the prior assault conviction did

not reveal that the defendant admitted the facts in the victim’s testimony as the basis for

her guilty plea, the trial court violated the defendant’s right to a jury trial. (Gallardo,

supra, 4 Cal.5th at pp. 136-137.) The Supreme Court stated the trial court had gone “‘far

beyond the recognition of a prior conviction’” and engaged in impermissible judicial

factfinding by using the preliminary hearing transcript to determine the nature of the

defendant’s prior conviction. (Id. at p. 134.) Disapproving of McGee in part, the

Supreme Court in Gallardo held that “a court considering whether to impose an increased

sentence based on a prior qualifying conviction may not determine the ‘nature or basis’ of

the prior conviction based on its independent conclusions about what facts or conduct

‘realistically’ supported the conviction.” (Gallardo, supra, at p. 136.)

While this case was pending review in the California Supreme Court, the

California Supreme Court in Milton, supra, 13 Cal.5th at page 898, held that Gallardo,

supra, 4 Cal.5th 120, does not apply retroactively to final judgments, such as in the

instant case. As a consequence, the California Supreme Court vacated our opinion in this

18 case and transferred the case back to this court with directions to reconsider the cause in

light of Milton. Because Gallardo does not apply retroactively to this case under Milton,

this court must reconsider whether, under the law applicable when the defendant admitted

the carjacking prior and was sentenced in 2006, defendant’s carjacking prior qualified as

a strike. We conclude it does not under section 667(d)(3). Even without applying

Gallardo retroactively, we conclude defendant’s 2001 juvenile carjacking adjudication

does not qualify as a strike prior because paragraph (D) of section 667(d)(3) has not been

met.

In Garcia, supra, 21 Cal.4th 1, the Supreme Court considered whether a prior

juvenile adjudication for a serious felony, which was not a section 707(b) offense,

qualified as a strike. The Supreme Court in Garcia interpreted the language of section

1170.12, subdivision (b)(3) as providing that an adjudication which is not a 707(b)

offense can constitute a strike prior under section 667(d)(3) only if, at the time of the

juvenile adjudication, the defendant is also adjudicated a ward for a 707(b) offense.

(Garcia, supra, at p. 6.)

The California Supreme Court in Garcia explained that under paragraph (B) of

section 667(d)(3), “a prior juvenile adjudication qualifies as a prior felony conviction for

Three Strikes purposes only if the prior offense is listed in Welfare and Institutions Code

section 707(b) or is classified as ‘serious’ or ‘violent.’ Paragraph (D) does not modify or

conflict with paragraph (B), but states a separate, additional requirement: the prior

adjudication qualifies as a prior felony conviction only if the defendant, in the prior

19 juvenile proceeding, was adjudged a ward because of at least one offense listed in section

707(b).” (Garcia, supra, 21 Cal.4th at p. 13, italics added.)

The Garcia court therefore held that, “[i]n the proceeding leading to the prior

juvenile adjudication alleged and imposed against defendant as a prior felony conviction,

the only felony offense for which defendant was adjudged a ward of the juvenile court

was burglary of an inhabited dwelling, which is not an offense listed in Welfare and

Institutions Code section 707(b). Although that offense is classified as serious and

would, therefore, qualify as a strike under paragraph (B), the separate requirement of

paragraph (D), that the juvenile was adjudged a ward of the juvenile court because of

a section 707(b) offense, was not satisfied. The trial court therefore erred in sentencing

defendant under section 667, subdivision (e)(1).” (Garcia, supra, 21 Cal.4th at p. 15.)

Garcia did not address or consider the issue raised here of whether the

requirement of paragraph (D) of section 667(d)(3) can be satisfied by the trial court going

behind the prior adjudication and determining based on the record of the prior

adjudication that the defendant committed an unalleged 707(b) offense.

The court in In re Jensen (2001) 92 Cal.App.4th 262, 266 (Jensen), however,

addressed the issue. In Jensen, the court stated that the trial court can go behind the

juvenile adjudication to determine from the entire record whether the adjudication

involved the commission of a 707(b) offense, required under paragraph (B) of section

667(d)(3) for a strike finding. But citing Garcia, supra, 21 Cal.4th at page 15, the Jensen

court further concluded that the trial court cannot go behind the adjudication to determine

20 whether paragraph (D) of section 667(d)(3), is satisfied. Paragraph (D) requires that the

strike prior be based on adjudication of at least one section 707(b) offense. (Jensen,

supra, at p. 267.)

As the court in Jensen explained, “In urging the record of the prior adjudication be

examined to satisfy paragraph (D) by showing Jensen’s conduct constituted a Welfare

and Institutions Code section 707(b) offense, the People effectively treat paragraph (D) as

though it merely sets forth the offenses that qualify as juvenile strikes, much like

paragraph (B). [¶] In doing so, the People lose sight of the salient requirement of

paragraph (D)—namely, the adjudication of wardship be based on at least one Welfare

and Institutions Code section 707(b) offense. Such treatment also ignores the statutory

interpretation adopted by our state’s high court, which found paragraph (D) sets forth a

necessary and independent requirement for using a prior juvenile adjudication as a strike.

(Garcia, supra, 21 Cal.4th at pp. 6, 12.) As the Supreme Court put it: ‘[W]e interpret

paragraph (B) as setting out the list of prior juvenile offenses that will qualify as strikes

and paragraph (D) as requiring, in addition, that in the prior juvenile proceeding giving

rise to the qualifying adjudication the juvenile [had] been adjudged a ward of the court

because of a Welfare and Institutions Code section 707(b) offense, whether or not that

offense is the same as the offense currently alleged as a strike.’ (Id. at p. 6, italics added.)

In other words, ‘[p]aragraph (D), . . . unlike paragraph[] . . . (B), does not set forth a

circumstance relating to “the prior offense.” Instead, it requires that the juvenile “was

adjudged” a ward under Welfare and Institutions Code section 602 because of a Welfare

21 and Institutions Code section 707(b) offense. (§ 667, subd. (d)(3)(D).)’ (Id. at p. 7.)”

(Jensen, supra, 92 Cal.App.4th at p. 267.)

The Jensen court rejected People v. Fountain (2000) 82 Cal.App.4th 61

(Fountain), to the extent Fountain suggested in dicta that a trial court can look to the

record behind a juvenile adjudicaton to determine whether the defendant’s conduct

constituted a 707(b) offense when determining whether the requirement in paragraph (D)

has been satisfied. (Jensen, supra, 92 Cal.App.4th at pp. 267-268; People v. Squier

(1993) 15 Cal.App.4th 235, 240.)

The Jensen court stated: “In dicta, the Court of Appeal in People v. Fountain,

supra, 82 Cal.App.4th at page 68, stated a trial court could properly look to the record

behind a juvenile adjudication of battery with serious bodily injury (§ 243, subd. (d)) to

determine whether the defendant’s conduct constituted a Welfare and Institutions Code

section 707(b) offense, namely assault by any means likely to produce great bodily

injury.[] [¶] However, this observation does not help the People here. As we read

People v. Fountain, supra, 82 Cal.App.4th 61, the purpose of examining the record of the

juvenile adjudication was to determine whether the requirement of paragraph (B) was

met. Battery with serious bodily injury is not a strike offense—it is neither a violent

felony under section 667.5 nor a serious felony under section 1192.7, and it is not an

offense listed in Welfare and Institutions Code section 707(b). We have no quarrel with

the proposition that a trial court can go behind the bare juvenile adjudication to determine

whether it is a qualifying offense—that is, whether it meets the requirement of paragraph

22 (B). (See People v. Leng (1999) 71 Cal.App.4th 1, 9.) Our position, as outlined above,

is that a trial court cannot do so to meet the requirement of paragraph (D). To the extent

that People v. Fountain, supra, 82 Cal.App.4th 61, holds otherwise, we decline to follow

it.” (Jensen, supra, 92 Cal.App.4th at pp. 267-268; italics added.)

The Jensen court therefore held that the defendant’s prior juvenile adjudication for

voluntary manslaughter did not qualify as a strike under section 667(d)(3), because “[a]

necessary condition—that Jensen was adjudged a ward of the juvenile court for an

offense listed in Welfare and Institutions Code section 707(b)—was not met. (§ 667,

subd. (d)(3)(D.)” (Jensen, supra, 92 Cal.App.4th at p. 268.)

Likewise, here, the necessary condition, paragraph (D) of section 667(d)(3) was

not met. In the prior 2001 juvenile proceeding, defendant was not adjudged a ward based

on at least one offense listed in section 707(b). And as in Jensen, the sentencing court in

2006 could not go behind the 2001 record to establish the separate, additional

requirement in paragraph (D) of section 667(d)(3).

Fountain does not provide persuasive authority to the contrary. In Fountain, 82

Cal.App.4th 61, 69, the court held that the defendant’s juvenile adjudication for battery

with serious bodily injury did not qualify as a strike, where the record was silent as to

whether the defendant acted by means of force “likely” to cause great bodily injury. The

Fountain court’s comment that the sentencing court could look behind the adjudication

and look at the defendant’s conduct, concerned determining whether the adjudicated

offense qualified as a 707(b) offense. The Fountain court did not differentiate between

23 paragraphs (B) and (D) of section 667(d)(3) when it stated that the court could go behind

the record. (Fountain, supra, at p. 68.)

Furthermore, the Fountain court relied on People v. Reed (1996) 13 Cal.4th 217

and People v. Guerrero (1988) 44 Cal.3d 343, 351, in support of the proposition that the

court could look behind the prior adjudication. (Fountain, supra, 82 Cal.App.4th at p.

68.) Reed and Guerrero were decided before the California Supreme Court decided

Garcia, supra, 21 Cal.4th 1, which clarified the difference between the strike prior

requirements in paragraphs (B) and (D) of 667(d)(3).

Even assuming there was sufficient evidence in the record of the prior adjudication

establishing a 707(b)(25) offense (carjacking while armed), the People cannot establish

that the offense qualifies as a strike because the People cannot show compliance with the

paragraph (D) requirement. Paragraph (D) requires that defendant was adjudged a ward

based on an offense listed in section 707(b), which did not occur. (707(b)(25);

§ 667(d)(3)(D); Garcia, supra, 21 Cal.4th at p. 13; Jensen, supra, 92 Cal.App.4th at p.

268.)

V.

IAC

The People argue in their appellate supplemental reply brief that, “Now that the 4 Supreme Court has decided the Gallardo rule[ ] may not be applied retroactively,

Brown’s only remaining claim is that he was denied the effective assistance of counsel in

4 Omission of the Gallardo case cite footnote.

24 admitting the juvenile strike prior in 2006.” The People argue there was no IAC because

the 2001 record of adjudication of the carjacking offense supports a finding that

defendant committed the alternative crime of carjacking while armed with a dangerous or

deadly weapon (707(b)(25)), which qualifies as a strike prior. For the reasons stated in

the foregoing section, we disagree that defendant’s carjacking offense qualifies as a

707(b) strike, and therefore conclude defendant has met his burden of establishing IAC.

The habeas court granted defendant’s writ petition in part based on finding his

defense attorney provided deficient representation by not objecting during sentencing to

the trial court’s finding that defendant’s carjacking adjudication qualified as a strike. In

order to successfully challenge a guilty conviction on the ground of IAC, a defendant

must establish both: “‘(1) that counsel’s representation fell below an objective standard

of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s

unprofessional errors, a determination more favorable to defendant would have resulted.

[Citations.] If the defendant makes an insufficient showing on either one of these

components, the ineffective assistance claim fails.’” (People v. Holt (1997) 15 Cal.4th

619, 703, quoting People v. Rodrigues (1994) 8 Cal.4th 1060, 1126; see also People v.

Booth (2016) 3 Cal.App.5th 1284, 1302.) In reviewing a claim of ineffective assistance

of counsel, a court must view the actions of trial counsel with deference and indulge a

strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance. (Strickland v. Washington (1984) 466 U.S. 668, 689, People v.

Holt, supra, at p 703.)

25 The People argue there was no IAC because, under the law at the time of

defendant’s 2006 sentencing, it would have been futile, based on the facts in the

probation report, to object to the trial court treating the juvenile carjacking as a strike.

The People assert that the weight of authority, as reflected in People v. McGee, supra, 38

Cal.4th at pages 697-706, supported allowing the trial court to rely on the probation

report to find the juvenile carjacking offense qualified as one of the listed 707(b) strikes.

But as discussed above, regardless of whether the record of the carjacking adjudication

provided sufficient evidence of the qualifying 707(b) offense of carjacking while armed

with a firearm, the offense could not qualify as a strike prior under section 667(d)(3),

because there was no compliance with paragraph (D) of section 667(d)(3).

Defense counsel’s failure to advise defendant that the section 215(a) carjacking

adjudication did not qualify as a strike and counsel’s failure during the 2006 sentence

hearing to object to the strike was not objectively reasonable. (People v. Booth, supra, 3

Cal.App.5th at p. 1303.) There is no professionally excusable explanation for defense

counsel failing to do so given Garcia’s holding, which predates defendant’s sentencing,

that 667(d)(3)(D) imposes a “separate, additional requirement,” which was not met here.

In addition, defendant was prejudiced by his attorney’s IAC in that it is probable

defendant would not have admitted the strike had counsel advised him it did not qualify

as a strike. It is also probable the sentencing court would not have imposed the strike

prior had defense counsel objected to it under section 667(d)(3). The record of the 2001

adjudication was insufficient to support imposing a strike prior based on defendant’s

26 conduct in 2001, because the People could not comply with paragraph (D) of section

667(d)(3). There is thus a reasonable probability that, but for counsel’s unprofessional

errors, a determination more favorable to defendant would have resulted. Had defense

counsel advised defendant and the court that it did not qualify as a strike prior, defendant

likely would not have admitted the strike prior and the sentencing court likely would not

have imposed it, because it did not qualify as a strike prior under then-existing law. (See

Garcia, supra, 21 Cal.4th at pp. 6, 12.)

Furthermore, even if there were no IAC, the trial court properly granted

defendant’s writ petition based on the ground the carjacking adjudication did not qualify

as a strike under section 667(d)(3) and therefore was an unauthorized sentence.

VI.

LACHES

The People contend defendant’s writ petition was untimely and the delay in

bringing it prejudiced the People’s ability to challenge the writ petition. The reporters’

transcripts of relevant proceedings were no longer available and defendant’s attorney

could not remember the proceedings.

As explained in In re Robbins (1998) 18 Cal.4th 770, 777, “California law also

recognizes that in some circumstances there may be matters that undermine the validity

of a judgment or the legality of a defendant’s confinement or sentence, but which are not

apparent from the record on appeal, and that such circumstances may provide a basis for

a collateral challenge to the judgment through a writ of habeas corpus.” A variety of

27 procedural rules have been recognized that govern such writ relief, including the

requirement that claims raised in a habeas corpus petition must be timely filed. (In re

Robbins, supra, at p. 778.) Unjustified delay in presenting habeas corpus writ petition

claims bars consideration of the merits of the petition. (In re Clark (1993) 5 Cal.4th 750,

759; People v. Miller (1992) 6 Cal.App.4th 873, 881-882.)

In order “to avoid the bar of untimeliness with respect to each claim, the petitioner

has the burden of establishing (i) absence of substantial delay, (ii) good cause for the

delay, or (iii) that the claim falls within an exception to the bar of untimeliness.” (In re

Robbins, supra, 18 Cal.4th at p. 780.) An exception to any timeliness bar applies here.

Regardless of any delay, the trial court properly granted defendant’s writ petition

challenging defendant’s 2006 sentence, because the juvenile carjacking adjudication does

not qualify as a strike. Writ relief “will always issue to review an invalid sentence, when,

without the redetermination of any facts, the judgment may be corrected to accord with

the proper determination of the circumstances.” (In re Estrada (1965) 63 Cal.2d 740,

750.) In the instant case, writ relief has been issued “where the trial court has sentenced a

defendant to a term in excess of the maximum provided by law.” (Ibid.)

It is settled law in California that an unauthorized sentence can be challenged and

corrected at any time. (People v. Scott (1994) 9 Cal.4th 331, 354; Montgomery v.

Louisiana (2016) 577 U.S. 190, 213 [defendant permitted to challenge sentence as cruel

and unusual punishment 50 years after his arrest]; People v. Sanchez (2016) 245

Cal.App.4th 1409, 1417.) Habeas corpus relief is thus proper here where defendant was

28 sentenced to serve an illegal or unauthorized sentence. (In re Harris (1993) 5 Cal.4th

813, 839.) Writ relief may be granted when “the sentencing court acted in excess of its

jurisdiction by imposing a sentence on the petitioner that was longer than that permitted

by law.” (Ibid. [“We again invoked this rule in a case in which a habeas corpus

petitioner claimed two enhancement provisions were improperly applied to lengthen his

overall sentence.”].) (In re Harris (1989) 49 Cal.3d 131, 134, fn. 2, quoting In re

Huffman (1986) 42 Cal.3d 552, 555.)

The unauthorized sentence exception to the general rule precluding relief after a

judgment is final, applies here. Defendant’s sentence is unauthorized, either because the

sentencing court in 2006 simply overlooked the fact the carjacking strike was based on a

juvenile adjudication that does not qualify as a strike, or the court erroneously concluded

the prior qualified as a strike based on the probation report. Either way, defendant’s 2001

juvenile carjacking adjudication does not qualify as a strike. Therefore, the trial court

properly granted defendant’s petition for habeas corpus writ relief and vacated

defendant’s carjacking strike.

Furthermore, the record shows good cause for defendant delaying filing his writ

petition until January 5, 2018. Defendant was not told the juvenile carjacking strike was

invalid, and had no way of knowing this until after the CDCR notified the public

defender’s office on December 27, 2016, that defendant’s sentence appeared to be

improper, and the public defender thereafter reviewed the matter and concluded on

February 1, 2017, that defendant’s juvenile carjacking adjudication did not qualify as a

29 strike. It was not until defendant was advised of this that he had any reason to know the

strike was improper and take action to correct it.

On March 23, 2017, defendant requested the SBSC to modify his sentence. When

the trial court heard the matter on July 21, 2017, the parties and the court agreed

defendant should proceed by filing a writ petition. Four months later, on January 5,

2018, defendant filed his writ petition in the trial court.

Under these circumstances, defendant moved reasonably expeditiously in

challenging the juvenile carjacking strike. The record shows that the significant delay in

seeking such collateral relief was justified. Although some of the relevant reporter’s

transcripts were no longer available, this was not due to any fault on defendant’s part.

Although the unavailable reporter’s transcripts might have been helpful in

reviewing defendant’s writ petition, the People have not shown any prejudice by their

absence. Defendant remains convicted of all of the charged crimes in the SBSC case

based on his guilty plea in that case, and it is highly unlikely that any of the missing

transcripts and notes would have made any difference in the trial court’s ruling on

defendant’s writ petition. Regardless of whether there is missing evidence that may have

supported a finding that defendant was in possession of a firearm when he committed the

carjacking offense, the carjacking adjudication could not qualify as a strike under section

667(d)(3)(D).

30 VII.

JURISDICTION OVER LOS ANGELES

AND ORANGE COUNTY CASES

The People contend the SBSC exceeded its jurisdiction under Penal Code section

1170.1 by vacating the juvenile carjacking strikes in defendant’s Los Angeles and Orange

County cases (LASC case No. VA076709 and OCSC case No. 03NF1824). We disagree.

The SBSC had authority to vacate the juvenile carjacking strike from those cases, as it

did in the SBSC case, because, at the time of resentencing in the SBSC case, the court

was required to impose a single aggregate sentence on all three cases. In doing so, the

SBSC was required to vacate the juvenile carjacking strike in each of the three cases

because the juvenile carjacking adjudication did not qualify as a strike.

When the trial court granted habeas writ relief, the SBSC was thereafter required

to consider the entire sentencing scheme and reconsider all sentencing choices, as to all

pending determinate cases. (People v. Hill (1986) 185 Cal.App.3d 831, 834.) This is

“because an aggregate prison term is not a series of separate independent terms, but one

term made up of interdependent components. The invalidity of one component infects

the entire scheme.” (Ibid.)

“[Penal Code] [s]ection 1170.1 generally governs the calculation and imposition

of a determinate sentence when a defendant has been convicted of more than one felony

offense.” (People v. Williams (2004) 34 Cal.4th 397, 402.) Under Penal Code section

1170.1, subdivision (a), “Except as otherwise provided by law, and subject to [Penal

31 Code] [s]ection 654, when any person is convicted of two or more felonies, whether in

the same proceeding or court or in different proceedings or courts, and whether by

judgment rendered by the same or by a different court, and a consecutive term of

imprisonment is imposed under [Penal Code] [s]ections 669 and 1170, the aggregate term

of imprisonment for all these convictions shall be the sum of the principal term, the

subordinate term, and any additional term imposed for applicable enhancements for prior

convictions, prior prison terms, and [Penal Code] [s]ection 12022.1.” (Italics added.)

California Rules of Court, rule 4.452 further provides: “If a determinate sentence

is imposed under [Penal Code] section 1170.1[,] [subdivision] (a) consecutive to one or

more determinate sentences imposed previously in the same court or in other courts, the

court in the current case must pronounce a single aggregate term, as defined in [Penal

Code] section 1170.1[,] [subdivision] (a), stating the result of combining the previous and

current sentences. In those situations: [¶] (1) The sentences on all determinately

sentenced counts in all of the cases on which a sentence was or is being imposed must be

combined as though they were all counts in the current case.” (Italics added.) In doing

so, status enhancements, such as the juvenile carjacking strike, can be applied only once

when imposing an aggregate sentence. (People v. Edwards (2011) 195 Cal.App.4th

1051, 1057, 1060; People v. Williams, supra, 34 Cal.4th at p. 402.)

In the instant case, after the trial court granted writ relief, the SBSC was required

to impose a single aggregate determinate sentence for the SBSC, LASC, and OCSC

cases. Because the original sentences in each of those cases included sentencing on the

32 juvenile carjacking strike, which did not qualify as a strike, the SBSC had jurisdiction to

vacate the invalid strike in all three cases. Upon properly finding the juvenile carjacking

strike did not qualify as a strike in the SBSC case, the trial court properly made the same

finding as to the same strike in the other two cases. To do otherwise would have resulted

in inconsistent findings and sentencing on the same juvenile carjacking strike, where the

record established that the strike was invalid.

We therefore reject the People’s contention that SBSC did not have jurisdiction to

vacate the juvenile carjacking strike in the LASC and OCSC cases when imposing an

aggregate sentence on the three cases.

VIII.

DISPOSITION

The writ petition order and judgment are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON J.

I concur:

MILLER Acting P. J.

33 [In re Brandon Brown on Habeas Corpus, E071401]

MENETREZ, J., Dissenting.

I agree that the use of the carjacking strike to enhance the sentence imposed in

respondent Brandon Craig Brown’s case in San Bernardino County Superior Court in

2006 was unauthorized under People v. Garcia (1999) 21 Cal.4th 1 and In re Jensen

(2001) 92 Cal.App.4th 262. I respectfully dissent, however, because the superior court

exceeded its authority at resentencing.

First, the court resentenced Brown not only in his San Bernardino County case but

also in his Los Angeles County case and in his Orange County case, dismissing his

carjacking strike in each instance. The court had no authority to do that. Brown’s habeas

petition expressly sought resentencing only in his San Bernardino County case, and it

listed only his San Bernardino County case number. The prayer for relief mentioned only

his San Bernardino County case. (See People v. Green (1980) 27 Cal.3d 1, 43, fn. 28 [“It

is settled that in a habeas corpus proceeding ‘the court considers only those grounds of

illegality alleged in the petition for issuance of the writ’ [citation], or in any supplemental

petition filed with permission of the court”], overruled on another ground recognized in

People v. Martinez (1999) 20 Cal.4th 225, 241.) The district attorneys in Los Angeles

County and Orange County have never had notice and an opportunity to be heard on any

resentencing in their cases, and the judges in Los Angeles County and Orange County

likewise have not had an opportunity to revisit their sentencing choices.

Second, Brown’s San Bernardino County case was resolved by plea bargain. It

appears that his Los Angeles County case was resolved by plea bargain as well, because

1 he pled no contest to two counts of robbery while three other robbery counts and a

burglary count were dismissed. (On the present record it is unclear whether Brown’s

Orange County case was resolved by plea bargain; he was charged with two counts of

robbery, pled guilty to both, and received concurrent sentences.) Under People v. Stamps

(2020) 9 Cal.5th 685, if a court is considering modifying a sentence to which the parties

agreed in a plea bargain, then the district attorney ordinarily must be given the

opportunity to withdraw from the agreement, and the superior court likewise must have

an opportunity to withdraw its approval of the plea bargain. (Id. at pp. 707-709.)

For both of the foregoing reasons, the superior court exceeded its authority when it

resentenced Brown. We should therefore vacate the sentence and remand for further

proceedings. Accordingly, I respectfully dissent.

MENETREZ J.