The opinion
Filed 11/30/20 P. v. Tolbert CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B298372
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. YA097555)
v.
WILLIE L. TOLBERT,
Defendant and
Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Laura C. Ellison, Judge. Reversed in part
and remanded.
Jason Szydlik, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Julie L. Garland, Senior
Assistant Attorney General, Steve Oetting, Supervising
Deputy Attorney General, Paige B. Hazard, Deputy Attorney
General, for Plaintiff and Respondent.
__________________________
Defendant and appellant Willie L. Tolbert appeals from
a judgment after a jury trial, in which he was convicted of
first degree burglary and found to have suffered a prior
felony conviction in Texas for first degree arson, and a court
trial, in which the Texas conviction was found to be a prior
serious felony conviction. Defendant contends: (1) his trial
counsel rendered ineffective assistance by failing to object to
documents outside the record of conviction in his Texas case;
(2) there is no substantial evidence that his arson conviction
in Texas constituted a serious felony under California law,
because the record of conviction does not show the crime
involved great bodily injury, arson, or exploding a
destructive device or an explosive; (3) the trial court erred by
failing to strike his prior serious felony conviction; and (4)
the trial court should have held a hearing on his ability to
pay restitution and fees assessed. We conclude there is
insufficient evidence to establish defendant’s Texas
conviction contained all of the elements of a serious felony
under Penal Code section 1192.7, subdivision (c),1 and
therefore, we must remand for retrial of whether defendant
was subject to a serious-felony sentence enhancement (§ 667,
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
subd. (a)) or eligible to be sentenced under the three strikes
law (§§ 667, subds. (b)–(i), 1170.12). Accordingly, we reverse
the judgment in part.
FACTUAL AND PROCEDURAL BACKGROUND
Burglary
Around midnight on January 18, 2018, defendant
entered the home of 92-year-old Claire Jeffrey while she was
present. He took Jeffrey’s driver’s license, AARP card,
library card, and cash, before climbing out a bathroom
window. A police officer detained him on the sidewalk about
100 feet from the home and found the items in the front
pocket of his pants.
Information and Trial
Defendant was charged by amended information with
first degree burglary of an inhabited dwelling (§ 459). The
amended information alleged the crime was a serious felony
(§ 1192.7, subd. (c)) and a violent felony, in that another
person, other than an accomplice, was present during the
burglary (§ 667.5, subd. (c)). The information further alleged
that defendant suffered a conviction in Texas for arson in
2007, which qualified as a prior serious felony (§ 667, subd.
(a)(1)) and a strike (§§ 667, subds. (b)–(j), 1170.12).
3
After a trial, the jury found defendant guilty of first
degree burglary and the jury found true that another person
was present during the offense. Before the next phase of the
trial to determine whether defendant had a prior conviction,
defense counsel asked, “My understanding is that the --
whether or not this would qualify as a strike prior under the
current California law is a question of law that is to be
decided by the court, and usually that decision would decide
whether or not we would even get to the step of even having
the jury decide the question of whether or not the strike
prior is actually that of Mr. Tolbert. [¶] My position is that
this does not qualify under the California three strikes law,
that the least adjudicated element does not meet the
requirement to rise to the level of a strike in California. So if
the court were to decide that, in fact, it did not meet the level
to be a strike in California, then this wouldn’t even go to the
jury.” The trial court stated that the court would decide
whether the conviction constituted a strike at the time of
sentencing, but the jury would determine whether the
defendant had the conviction. In the bifurcated proceeding,
the jury found true that defendant was previously convicted
in 2007 in Texas for first degree felony arson.
Sentencing
The prosecution argued in a sentencing memorandum
that defendant’s Texas conviction for first degree felony
arson constituted a “serious felony” under section 1192.7,
4
subdivision (c)(8), which applies to felonies in which the
defendant inflicts great bodily injury on any person, and
section 1192.7, subdivision (c)(14), which applies to arson.
The memorandum explained the definition of “arson” for
purposes of Texas Penal Code section 28.02 applied if the
person started a fire or caused an explosion with intent to
destroy or damage enumerated types of property.
Furthermore, under Texas law, the offense was considered to
be a felony of the first degree if bodily injury or death was
suffered by any person as a result of the commission of the
offense. The prosecution asserted that the record of
conviction included the judgment and the defendant’s rap
sheet, which showed defendant was convicted of first degree
felony arson causing bodily injury or death.2
Defendant filed a sentencing memorandum and motion
to strike the prior serious felony conviction under People v.
Superior Court (Romero) (1996) 13 Cal.4th 497. The
memorandum argued the merits of dismissing a strike under
Romero, but did not mention the Texas conviction or
whether it constituted a serious felony under California law.
A sentencing hearing was held on May 8, 2019. The
trial court noted that the defendant’s sentencing
memorandum did not address whether the prior conviction
qualified as a serious felony. Defense counsel responded, “I
was remiss because I was -- since we were -- since I had
2 The sentencing memorandum referred to the
“complaint” in the Texas conviction, but the parties agree on
appeal that the text referred to the judgment.
5
remembered that we had done the jury trial I did not even
remember that the issue of whether or not it would qualify
as a strike would be on for today, so I did not. That wasn’t
on my radar.” She later stated, “Your Honor, when I did try
and see if I could find the elements for arson for Texas, and
tried to do a comparison to California[,] I was not able to find
any definitive statute with respect to the arson, but from my
reading of it[,] it appears as though it looks more like a
reckless burning than an arson. [¶] So I would argue that it
does not qualify as a strike under California law, but I was
not able to find any authority just based on what -- just the
reading of the complaint.” The trial court noted that the
prosecution had cited the applicable Texas Penal Code
section defining arson in her sentencing memorandum.
Defense counsel stated that she could not agree with any
representations made about Texas law, because she was not
familiar with Texas law.
The trial court found defendant’s prior conviction was a
serious felony and a strike. The court denied defendant’s
motion to strike the prior serious felony conviction under
Romero. Defense counsel discussed that defendant suffered
from early Parkinson’s disease. The court weighed the
factors in aggravation against the factors in mitigation. The
only mitigating factor was defendant’s prior history of
mental illness, but the trial court noted that he was found to
be competent. The factors in aggravation were that the
victim was clearly elderly and vulnerable, the crime involved
some level of planning and sophistication, and defendant’s
6
priors were numerous and increasing in seriousness. The
factors in aggravation far outweighed the factors in
mitigation. The trial court sentenced defendant to an
aggregate term of 17 years in prison, which consisted of the
upper term of six years for burglary, doubled to 12 years as a
result of the strike, plus five years for the prior serious
felony.
In addition, the trial court ordered a restitution fine of
$300, criminal conviction assessment of $30, and a court
operations assessment of $40, and noted they could be taken
from his prison wages, if any. Defense counsel argued that
due to defendant’s age and his Parkinson’s condition, he
might not be eligible for a job that would earn the money
necessary. She asked that the court delete the fines and
fees, but did not request a separate hearing on defendant’s
ability to pay to fines and fees imposed. The trial court
stated, “I’m not going to, because he’s got [a lot] of years to
pay them. If he has any money, and if he’s earning any
money, they can address that. If he’s not, then obviously
they won’t be taking it from him.”
Appellant filed a timely notice of appeal.
7
DISCUSSION
Texas Conviction
On appeal, the Attorney General concedes that section
1192.7, subdivision (c)(8),3 one of the sections relied on in the
sentencing memorandum, does not apply in this case. In
addition, the Attorney General concedes that the Texas
conviction cannot constitute a serious felony under the other
section cited by the prosecution at the time of sentencing,
section 1192.7, subdivision (c)(14) [covering “arson”],
standing alone. Instead, in the respondent’s brief on appeal,
the People contend for the first time that the Texas
conviction qualifies as a serious felony under section 1192.7,
subdivision (c)(14) and (c)(16),4 collectively, because the
elements of the Texas law necessarily satisfied one or the
other of these two California subsections. Specifically, the
Attorney General contends that defendant’s conviction for
first degree arson under Texas law was either for starting a
fire or causing an explosion with intent to destroy or
damage, thereby satisfying the elements either of section
3 Section 1192.7, subdivision (c)(8) provides, “any
felony in which the defendant personally inflicts great bodily
injury on any person, other than an accomplice, or any felony
in which the defendant personally uses a firearm.”
4 Section 1192.7, subdivision (c)(16) provides,
“exploding a destructive device or any explosive causing
bodily injury, great bodily injury, or mayhem.”
8
1192.7, subdivision (c)(14), for setting fire to or causing the
burning of a structure, forest land, or property, or section
1192.7, subdivision (c)(16), for exploding a destructive device
or any explosive causing bodily injury. Therefore, the
Attorney General reasons, the Texas conviction qualified as
a serious felony under section 1192.7, subdivision (c)(14) and
(c)(16), when read together. Defendant contends in his reply
brief, however, that a person may be guilty of first degree
arson under Texas law for causing an explosion, other than
from an explosive device, and therefore, the conviction does
not qualify as a serious felony under California law. We
agree with defendant.
A. Procedure for Determination of Serious
Felony
“For criminal sentencing purposes in this state, the
term ‘serious felony’ is a term of art. Severe consequences
can follow if a criminal offender, presently convicted of a
felony, is found to have suffered a prior conviction for a
serious felony. If the present conviction is also for a serious
felony, the offender is subject to a five-year enhancement
term to be served consecutively to the regular sentence.
(§ 667, subd. (a).) Even if an offender’s present conviction is
not for a serious felony, a prior conviction for a serious felony
renders the offender subject to the more severe sentencing
provisions of the three strikes law. (§§ 667, subds.(b)–(i),
9
1170.12.)” (People v. Warner (2006) 39 Cal.4th 548, 552
(Warner).)
Whether a crime constitutes a serious felony is
determined by reference to section 1192, subdivision (c),
which enumerates qualifying crimes. (Warner, supra, 39
Cal.4th at p. 552.) “Under our sentencing laws, foreign
convictions may qualify as serious felonies, with all the
attendant consequences for sentencing, if they satisfy certain
conditions. For a prior felony conviction from another
jurisdiction to support a serious-felony sentence
enhancement, the out-of-state crime must ‘include[] all of the
elements of any serious felony’ in California. (§ 667, subd.
(a)(1).) For an out-of-state conviction to render a criminal
offender eligible for sentencing under the three strikes law
(§§ 667, subds. (b)–(i), 1170.12), the foreign crime (1) must be
such that, ‘if committed in California, [it would be]
punishable by imprisonment in the state prison’ (§§ 667,
subd. (d)(2), 1170.12, subd. (b)(2)), and (2) must ‘include[] all
of the elements of the particular felony as defined in’ section
1192.7(c) (§§ 667, subd. (d)(2), 1170.12, subd. (b)(2)).”
(Warner, supra, 39 Cal.4th at pp. 552–553, fn. omitted.) We
next consider whether defendant’s prior conviction in Texas
qualifies as a “serious felony” under California law.
B. Elements of Texas Conviction
At the time of defendant’s 2007 offense and conviction,
Texas Penal Code section 28.02, subsection (a), defined arson
10
as relevant here as follows: “A person commits an offense if
the person starts a fire, regardless of whether the fire
continues after ignition, or causes an explosion with intent
to destroy or damage: [¶] (1) any vegetation, fence, or
structure on open-space land; or [¶] (2) any building,
habitation, or vehicle [knowing it is within an incorporated
city or town, insured, subject to a security interest, located
on property that belongs to another or contains property
belonging to another, or the person is reckless about whether
the burning or explosion will endanger a life or the property
of another].” (Tex. Pen. Code, § 28.02(a).)5
An offense under subsection (a) of Texas Penal Code
section 28.02 is a felony of the second degree, “except that
the offense is a felony of the first degree if it is shown on the
trial of the offense that: [¶] (1) bodily injury or death was
suffered by any person by reason of the commission of the
offense; or [¶] (2) the property intended to be damaged or
destroyed by the actor was a habitation or a place of
assembly or worship.” (Tex. Pen. Code, § 28.02(d).)
C. Section 1192.7, Subdivisions (c)(14) and (c)(16)
The Attorney General contends defendant’s Texas
conviction for first degree arson qualified as a felony under
section 1192.7, subdivisions (c)(14) and (c)(16), which state
5 All citations to Texas Penal Code section 28.02 in this
opinion refer to the version of that statute effective from
September 1, 2005, to August 31, 2009.
11
the following crimes are serious felonies: “(14) arson; . . .
(16) exploding a destructive device or any explosive causing
bodily injury, great bodily injury, or mayhem.” (§ 1192.7.)
Arson is defined in section 451 as follows: “A person is
guilty of arson when he or she willfully and maliciously sets
fire to or burns or causes to be burned or who aids, counsels,
or procures the burning of, any structure, forest land, or
property.” (§ 451.)
An “explosive,” as defined in both Health and Safety
Code section 12000 and Penal Code section 16510, is “any
substance, or combination of substances, the primary or
common purpose of which is detonation or rapid combustion,
and which is capable of a relatively instantaneous or rapid
release of gas and heat, or any substance, the primary
purpose of which, when combined with others, is to form a
substance capable of a relatively instantaneous or rapid
release of gas and heat.” (Health & Saf. Code, § 12000; see
People v. Clark (1990) 50 Cal.3d 583, 602 (Clark) [definition
of “explosive” in Health and Safety Code section 12000
applied to section 190.2 in absence of specific definition].)6
6 Health and Safety Code section 12000 and Penal
Code section 16510 contain the same extensive list of
substances that qualify as explosives: “‘Explosives’ includes,
but is not limited to, any explosives as defined in Section 841
of Title 18 of the United States Code and published pursuant
to Section 555.23 of Title 27 of the Code of Federal
Regulations, and any of the following: [¶] (a) Dynamite,
nitroglycerine, picric acid, lead azide, fulminate of mercury,
black powder, smokeless powder, propellant explosives,
12
The California Supreme Court noted expert witnesses
in Clark agreed “explosions are not all caused by ‘explosives’
as that term is understood in the scientific community and
used in the relevant statutes. Not every substance or object
that is capable of exploding is an ‘explosive.’ The expert
testimony in this case established that neither gasoline nor
gasoline vapor is an explosive.” (Clark, supra, 50 Cal.3d at
pp. 599–600, fn. omitted.) “When the combination of air and
vapor ignites, a relatively instantaneous ‘flash burn occurs,’
a sudden oxidation or burning of the flammable gasoline
vapor. That flash burn stops as soon as the flammable
mixture is consumed, and does not cause any further fire
unless other combustible material is ignited during this
process.” (Id. at p. 600.) “Whether a flash burn, such as that
occurring when a combination of gasoline vapor and air is
detonating primers, blasting caps, or commercial boosters.
[¶] (b) Substances determined to be division 1.1, 1.2, 1.3, or
1.6 explosives as classified by the United States Department
of Transportation. [¶] (c) Nitro carbo nitrate substances
(blasting agent) classified as division 1.5 explosives by the
United States Department of Transportation. [¶] (d) Any
material designated as an explosive by the State Fire
Marshal. . . . [¶] (e) Certain division 1.4 explosives as
designated by the United States Department of
Transportation when listed in regulations adopted by the
State Fire Marshal. [¶] (f) For the purposes of this part,
‘explosives’ does not include any destructive device, . . . nor
does it include ammunition or small arms primers
manufactured for use in shotguns, rifles, and pistols.”
(Health & Saf. Code, § 12000; Pen. Code, § 16510.)
13
ignited, will cause this type of explosion depends primarily
on (1) the amount of flammable vapor-air mixture present at
the moment of ignition, and (2) the size of the container.”
(Ibid.)
“The source of a ‘concentrated’ explosion, one caused by
a true explosive, is typically a small quantity of an explosive
solid material such as a stick of dynamite. A concentrated
explosion is self-contained—independent of ambient
conditions, and not dependent on a supply of oxygen. When
detonated the explosive material undergoes a chemical
reaction that abruptly generates a large quantity of gas,
mainly nitrogen, that was not present before the detonation.
. . . [¶] By contrast, an explosion caused by a flash burn of
gasoline vapor and air is ‘diffuse.’ Its source is not a single
piece of explosive solid material, but the entire flammable
mixture of gases in the air. Such an explosion is entirely
dependent on the ambient conditions.” (Clark, supra, 50
Cal.3d at pp. 600–601.)
“Other exploding substances or objects that are not
deemed ‘explosives’ have received judicial attention in
Gordon v. Aztec Brewing Co. (1949) 33 Cal.2d 514 (beer);
Zentz v. Coca Cola Bottling Co. (1952) 39 Cal.2d 436 (Coca-
Cola); Myers v. Industrial Acc. Comm. (1923) 191 Cal. 673
(sherry); Saporito v. Purex Corp., Ltd. (1953) 40 Cal.2d 608
(bleach); Park v. Standard Chem Way Co. (1976) 60
Cal.App.3d 47 (cleanser); Woolen v. Aerojet General Corp.
(1962) 57 Cal.2d 407 (paint); Millers’ Nat. Ins. Co., Chicago,
Ill. v. Wichita Flour M. Co. (10th Cir. 1958) 257 F.2d 93
14
(dust); Dalehite v. United States (1953) 346 U.S. 15
(fertilizer); Kotiadis v. Gristede Bros., Inc. (1964) 20 A.D.2d
689 (grapefruit sections); Shields v. County of San Diego
(1984) 155 Cal.App.3d 103 (tuna waste); Van Zee v. Bayview
Hardware Store (1968) 268 Cal.App.2d 351 (aerosol can).”
(Clark, supra, 50 Cal.3d at p. 600, fn. 6.)7
7 We note that a “destructive device,” as defined in
Penal Code section 16460, subdivision (a), includes any of
the following weapons: “(1) Any projectile containing any
explosive or incendiary material or any other chemical
substance, including, but not limited to, that which is
commonly known as tracer or incendiary ammunition, except
tracer ammunition manufactured for use in shotguns. [¶]
(2) Any bomb, grenade, explosive missile, or similar device or
any launching device therefor. [¶] (3) Any weapon of a
caliber greater than 0.60 caliber which fires fixed
ammunition, or any ammunition therefor, other than a
shotgun (smooth or rifled bore) conforming to the definition
of a ‘destructive device’ found in subsection (b) of Section
479.11 of Title 27 of the Code of Federal Regulations,
shotgun ammunition (single projectile or shot), antique rifle,
or an antique cannon. [¶] (4) Any rocket, rocket-propelled
projectile, or similar device of a diameter greater than 0.60
inch, or any launching device therefor, and any rocket,
rocket-propelled projectile, or similar device containing any
explosive or incendiary material or any other chemical
substance, other than the propellant for that device, except
those devices as are designed primarily for emergency or
distress signaling purposes. [¶] (5) Any breakable container
that contains a flammable liquid with a flashpoint of 150
degrees Fahrenheit or less and has a wick or similar device
capable of being ignited, other than a device which is
15
D. Analysis
We conclude that the elements of the Texas offense are
broader than the elements of the California law relied on by
the Attorney General. It is realistically possible for
defendant to have caused an explosion under Texas law
without starting a fire or exploding an explosive, as defined
under California law. Therefore, the Texas conviction could
have been based on conduct that would not constitute a
serious felony under California law.
For example, in Wheeler v. State (Tex.Ct.App. 2000) 35
S.W.3d 126, a defendant argued there was no substantial
evidence to support the finding that he caused an explosion.
The Texas appellate court noted that under Texas case law,
there is no fixed definition of the term “explosion”; it is
construed in its popular sense. “In United States v. Ryan,
153 F.3d 708 (8th Cir.1998), cert. denied, 526 U.S. 1064, 119
S.Ct. 1454, 143 L.Ed.2d 541 (1999), the court stated that ‘[a]
flashover occurs when a fire in an area produces sufficient
heat to explosively ignite all of the combustible material
within the area.’ Id. at 710 (emphasis added). We find that
commercially manufactured primarily for the purpose of
illumination. [¶] (6) Any sealed device containing dry ice
(CO2) or other chemically reactive substances assembled for
the purpose of causing an explosion by a chemical reaction.”
(Pen. Code, § 16460, subd. (a).) “A bullet containing or
carrying an explosive agent is not a destructive device as
that term is used in subdivision (a).” (Pen. Code, § 16460,
subd. (b).)
16
the jury, applying the common and ordinary meaning of an
undefined word, could have reasonably found that an
‘explosion’ occurred.” (Wheeler v. State (Tex.Ct.App. 2000) 35
S.W.3d 126, 134.)
The Texas appellate court examined the definition of
“explosion” in the context of an insurance claim in Millers
Mutual Fire Insurance Co. v. Schwartz (Tex.Ct.App. 1958)
312 S.W.2d 313, 314 (Miller). In Miller, the trial court found
a hose disconnected from a pipe as the result of an explosion,
resulting in water flooding a store. The appellate court
found that a boiler or pipe bursting was commonly
considered to be an explosion and had to be read into the
policy.
In this case, defendant’s Texas conviction could have
been based on conduct that caused an explosion but does not
qualify as arson or exploding a destructive device or
explosive under California law. For example, if a person
uses an oxygen tank for target practice with a small caliber
pistol, the pressurized oxygen tank can explode from the
impact, spraying shrapnel that endangers the life or
property of another, without causing any fire. Causing an
explosion in this way could violate the Texas arson statute.
This conduct would not constitute arson under California
law, however, because no fire was set, and neither the
oxygen tank, nor the small caliber pistol would be considered
an explosive or destructive device under the California
statute.
17
We must remand the matter for retrial and
resentencing, to permit the People to demonstrate based on
the record of conviction that defendant’s guilty plea
encompassed an admission about the nature of his crime.
(See People v. Barragan (2004) 32 Cal.4th 236, 241 [the
reversal of a true finding on a prior conviction for
insufficient evidence does not forestall a retrial on that
enhancement].) In light of this ruling, we need not further
address defendant’s contentions regarding sentencing.
When a case is remanded for resentencing, the trial court is
entitled to consider the totality of the sentencing scheme.
(People v. Burbine (2003) 106 Cal.App.4th 1250, 1256, 1258
[“subject only to the limitation that the aggregate prison
term [cannot] be increased”].)
18
DISPOSITION
The portion of the judgment in which the trial court
found that the Texas conviction constituted a prior serious
felony and a strike is reversed in accordance with this
opinion. Upon retrial of the issue and/or resentencing, the
trial court may fully exercise its sentencing discretion.
MOOR, J.
We concur:
RUBIN, P. J.
BAKER, J.
19