People v. Pearson CA1/2

Filed 6/24/21 P. v. Pearson CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Appellant, A159999 v. ADAM PEARSON, (Mendocino County Super. Ct. No. SCUK-CRCR-19-32568-001) Defendant and Respondent.

In this People’s appeal, the Mendocino County District Attorney contends defendant Adam Pearson received an unauthorized sentence because the trial court found him eligible to serve his prison commitment in county jail despite a prior felony conviction that mandated he serve his sentence in state prison. Because defendant has been released from custody, the appeal is moot. We therefore dismiss it. BACKGROUND By information dated October 3, 2019, defendant was charged with felony vandalism and misdemeanor battery.1 The vandalism charge was accompanied by two special allegations: (1) defendant suffered a prior strike

1 The facts underlying the charges are irrelevant to the issue on appeal.

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within the meaning of Penal Code sections 1170.12 and 667, and (2) he served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). After defendant pleaded not guilty on both counts and denied all special allegations, defense counsel advised the trial court that “the strike allegation is really driving the bus here” and she had reason to believe defendant’s prior felony was in fact not a strike. Accordingly, she requested that the court bifurcate trial on the strike allegation and hold a bench trial on that allegation before trial on the substantive offenses. The prosecutor and court were amenable to this arrangement, so on December 9, 2019 a bench trial on the strike allegation was held before the Honorable John Behnke. Judge Behnke found the People had not met their burden of proving the strike beyond a reasonable doubt and thus found the strike allegation not true. On January 2, 2020, defendant entered an open plea of no contest to the vandalism and battery charges, with the Honorable Carly Dolan presiding over the plea hearing. At the hearing, a question arose regarding defendant’s eligibility to serve his sentence in county jail. As would develop in subsequent briefing and in argument at defendant’s sentencing hearing, the issue was whether Judge Behnke’s finding that the prosecutor did not prove beyond a reasonable doubt that defendant’s prior felony was a strike within the meaning of the Three Strikes law collaterally estopped the prosecutor from showing at sentencing that defendant’s prior felony conviction was a serious or violent felony that, pursuant to Penal Code section 1170, subdivision (h)(3), precluded defendant from serving a local commitment. According to the prosecutor, People v. Gallardo (2017) 4 Cal.5th 120 limited what Judge Behnke could consider in making his