P. v. Bowers

P. v. Bowers




Filed 3/30/06 P. v. Bowers CA3





NOT TO BE PUBLISHED










California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.










IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA





THIRD APPELLATE DISTRICT





(Shasta)








THE PEOPLE,


Plaintiff and Respondent,


v.


HAROLD LYNN BOWERS,


Defendant and Appellant.




C048810



(Super. Ct. Nos. 04F5721, 04F3579)




In case No. 04F3579, based on the search of his residence on May 12, 2004, defendant Harold Lynn Bowers was charged with possession of cocaine base for the purpose of sale (Health & Saf. Code, § 11351.5; count 1), maintaining a place for the use or sale of controlled substances (Health & Saf. Code, § 11366; count 2), and attempting to destroy evidence (Pen. Code, §§ 135/664; count 3); the information also alleged a prior strike conviction. (Pen. Code, § 1170.12.)


A jury acquitted defendant of the charged offenses on counts 1 and 3, but convicted him on count 2; on count 1, the jury convicted defendant of the lesser included offense of being in possession of cocaine base (Health & Saf. Code, § 11350). The trial court thereafter found the strike allegation true.


In case No. 045721, based on a traffic stop made on May 8, 2004, defendant was charged with possession of cocaine base for the purpose of sale (Health & Saf. Code, § 11351.5; count 1), sale or transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a); count 2), and criminal threats (Pen. Code, § 422; count 3); the information also alleged the same prior strike conviction as in case No. 04F3579. The prosecutor dismissed count 3 before trial. The jury thereafter acquitted defendant on count 1 (and also on the lesser included offense of possession of cocaine base), but convicted him on count 2. The trial court found the strike allegation true.


In a joint sentencing proceeding, the trial court imposed an aggregate prison term of 11 years and four months, computed as follows: five years (the upper term) for transportation of a controlled substance in case No. 04F5721, plus eight months consecutive for possession of cocaine base in case No. 04F3579, all doubled pursuant to the Three Strikes law, with sentence stayed on defendant’s conviction for maintaining a place for the use or sale of controlled substances in case No. 04F3579.


Defendant contends: (1) In case No. 04F5721, the trial court abused its discretion by denying defendant’s Kellett motion (Kellett v. Superior Court (1966) 63 Cal.2d 822), which sought to dismiss the felony complaint because the prosecution had improperly failed to join it with a pending misdemeanor case. (2) In case No. 04F5721, the trial court erred by failing to instruct the jury that Lynda Jackson was an accomplice as a matter of law, and defendant’s conviction for transporting a controlled substance must be reversed because Jackson’s testimony was inadequately corroborated. (3) Insufficient evidence supported the trial court’s finding as to both cases that defendant had suffered a prior strike conviction. (4) The trial court’s imposition of the upper term in case No. 04F5721 violated defendant’s constitutional rights to jury trial and due process. (5) The abstract of judgment and minute order must be corrected as to case No. 04F3579 to show the statute under which defendant was convicted. The People concede the last point.


We conclude defendant’s claim of Kellett error (Kellett, supra, 63 Cal.2d 822) has merit, requiring the reversal of his conviction in case No. 04F5721. This conclusion moots defendant’s second and fourth contentions. Defendant’s third contention lacks merit. Accordingly, we shall reverse in part, affirm in part, and remand for further proceedings.


FACTUAL AND PROCEDURAL BACKGROUND


Case No. 04F5721


Because the charges in case No. 04F5721 arose first, even though the complaint was filed after that in case No. 04F3579, we begin with the trial evidence in case No. 04F5721.


At 11:50 a.m. on May 8, 2004, while conducting a traffic stop, Redding Police Officer Scott Hyatt saw defendant driving on Boulder Creek Drive. Knowing that defendant had a suspended driver’s license, Hyatt got his partner to begin a stop of defendant. Hyatt joined his partner about 30 seconds later. By then, defendant was sitting in the front passenger seat and a woman (Lynda Jackson, defendant’s then wife) was sitting in the driver’s seat. Another passenger, Mattie Hill, was in the back seat.


After explaining the reason for the stop, Officer Hyatt asked Jackson to step out of the car. Concluding that she was under the influence of a controlled substance, Hyatt arrested and searched her; he found a “hard ball object” that he suspected to be cocaine inside her pocket, wrapped with a tissue. She also had a homemade smoking device holding a piece of Brillo pad and a half-gram of cocaine. Hyatt handcuffed her and put her in the back of his patrol car.


Defendant and Jackson were transported separately to the jail. Officer Hyatt found about $1,000 in cash in defendant’s wallet, mainly in $20 and $50 bills.


Hyatt heard defendant tell Jackson two or three times as they awaited booking, “it’s okay” and “you know what to do.” Jackson announced she needed to urinate. After she was taken to the restroom, a jail officer found a 19-gram bag of cocaine in the toilet she had just used.


Testifying against defendant under a grant of immunity with a promise that charges against her would be dismissed if she testified truthfully, Jackson stated that she married defendant on April 29, 2004, but had the marriage annulled in May.[1] She was a longtime cocaine user who bought the drug from defendant before they got married. She had been arrested for burglary and assault in the 1980s.


According to Jackson, as defendant was pulling out of his driveway on May 8, 2004, he saw the police and gave Jackson the drugs to hide. She bent over and inserted them in her rectum. She did so because she believed it was her duty as his wife and because she thought she would get in trouble if she refused. When they were arrested, he told her to “take the rap” for possession because he had a drug record and she did not. (After trying to flush the drugs down the jail toilet, she told a female deputy that they belonged to defendant and she possessed them for sale on his behalf; it was his custom to give others drugs to possess and sell, then collect the money. Defendant was unemployed and earned money only from drug sales. He did not use cocaine, but only sold it.


The parties stipulated that on the afternoon of May 8, Jackson told Redding Police Officer Benjamin Love defendant gave her the drugs after he was directed to pull over for the traffic stop. They also stipulated that after defendant’s arrest his blood tested negative for cocaine and its metabolites, but positive for marijuana.


Officer Hyatt testified that 19 grams of cocaine equals about 76 uses, a quantity that could only have been possessed for sale. He also testified that $20 and $50 bills are typically used in drug transactions.


Testifying for the defense, Mattie Hill, the third person in defendant’s car on May 8, stated she did not see defendant give Jackson anything inside the car. Defendant told Jackson to trade places with him and get into the driver’s seat because he did not have a license. Hill admitted she had a long criminal history, was on parole on May 8, and had crack cocaine and paraphernalia on her person.


Case No. 04F3579[2]


At 7:00 a.m. on May 12, 2004, Special Agent Dan Callahan of the Shasta Interagency Narcotic Task Force and other officers approached the front door of Jackson’s second-story apartment (the only apartment in the complex with a security door) to serve a search warrant. Redding Police Officer Brian Barner covered the rear of the apartment with his drug detection dog.


After agents knocked on the wall beside the door and announced their presence, a female inside said she was coming to the door; however, no one opened it after repeated announcements, and the officers thought someone might have turned the deadbolt. Agent Callahan ordered his men to breach the door.


Five to 10 seconds after the first demand for entry, Officer Barner, observing from the rear, saw the arm of an African-American punching out a window screen and a hand tossing out two plastic bags. When Barner and other agents eventually entered the apartment, they saw the bathroom window screen was “pushed or ripped out.”


The agents pried open the screen door, then battered the front door down and entered. As he came in, Agent Callahan heard a noise that sounded like a toilet flushing, which he knew was a common means for drug-crime suspects to dispose of evidence.


The agents found Jackson just inside the living room, near the bedroom doorway; defendant, shirtless, was standing just inside the bedroom, having just come out of the bathroom. After handcuffing the two, the agents searched the premises.


Agent Callahan found a piece of crack cocaine weighing three grams in gross field weight on a windowsill in the master bedroom, and another piece of the same size in the kitchen. Agent Callahan also discovered a baggie of cocaine in a trashcan in the apartment’s backyard. Officer Barner’s dog alerted to currency and drug paraphernalia in the bedroom. The agents found a total of $684 in currency in the apartment. The drugs seized in the apartment and sent out for analysis tested positive for cocaine base.


Agents opined the cocaine found in the trashcan was possessed for sale because it was too large a quantity for personal use. Its street value was at least $500. It had probably been put in the trashcan for a purchaser or dealer to retrieve. The cocaine found on the windowsill, on the other hand, was in an amount consistent with personal use.


After agents retrieved the cocaine tossed out the bathroom window, one of them questioned defendant about it; he denied any knowledge of it. He admitted the trashcan was his, but denied ownership of its contents. He did not comment when informed that the trashcan contained newspapers with bird droppings, which suggested they had come from the apartment because Jackson kept birds there.


The agents did not find scales, packaging materials, or pay-owe sheets. However, Agent Rusty Bishop opined that the presence of baking soda, often used to transform powder cocaine into crack cocaine, indicated the drugs found in the apartment were possessed for sale.


Jackson testified that the agents broke in before she had a chance to open the door. She denied throwing drugs out of the apartment. She indicated defendant may have gone toward the bathroom as the agents knocked.


As in the other case, Jackson testified that she had been married to defendant but had annulled the marriage sometime after the date of the search, and that defendant was unemployed and made his living by drug sales. She also testified that he did not use rock cocaine.


DISCUSSION


I


Defendant contends the trial court abused its discretion in case No. 04F5721 when it denied his pretrial Kellett motion (Kellett, supra, 63 Cal.2d 822) without providing a sufficient statement of reasons or reviewing the documentary evidence as to his prior conviction for a misdemeanor Vehicle Code violation, allegedly arising out of the same conduct as that charged in case No. 04F5721. The People reply that defendant’s prosecution in case No. 04F5721 did not violate Kellett or Penal Code section 654 (section 654) because that case and the prior misdemeanor conviction were not based on a single act or course of conduct “and any evidentiary overlap between the cases was minimal”; moreover, the trial court did not need to review documentary evidence as to the misdemeanor conviction because it knew the gist of that case when it ruled on defendant’s motion. Defendant has the better argument.


Background


The charges


As recounted above, defendant was arrested along with Jackson on May 8, 2004, based on a traffic stop. After they were taken to the jail, a misdemeanor charge for driving under the influence (DUI) was filed against defendant. No other charge was filed against him at that time.


On the same date, after Jackson was caught trying to flush cocaine down the jail toilet, she told an officer defendant had threatened her into taking the cocaine and trying to dispose of it - the eventual basis for the charges in case No. 04F5721.


Based on the events of May 8, the police obtained and executed a search warrant on defendant’s and Jackson’s apartment on May 12, giving rise to the charges in case No. 04F3579. The complaint in that case was filed on May 14.


The prosecution thereafter filed a petition for an order requiring Jackson to testify under a grant of immunity, specifically mentioning her possible testimony about felony drug possession arising from the May 8 arrest. On July 6, 2004, the trial court granted the prosecutor’s petition and issued the requested grant of immunity.


On August 6, 2004, a complaint was filed in case No. 04F5721. Defendant entered a plea of not guilty, and counsel was appointed.


On August 18, 2004, a preliminary hearing was held in case No. 04F5721, and defendant was held to answer. The prosecutor told the magistrate he would file an information shortly.


On August 20, 2004, the prosecutor filed an information in case No. 04F5721. Apart from amending count 1 to charge the offense under a different statute, the information was substantively identical to the prior complaint.


According to the probation report, on the same date defendant pled to the misdemeanor DUI charge.


The Kellett motion


On October 22, 2004, defendant made an oral Kellett motion (Kellett, supra, 63 Cal. 2d 822) in limine in case No. 04F5721. He argued: (1) When the prosecutor filed this felony case, he knew of the existing DUI case but rejected defendant’s proposal to consolidate the cases or amend the original complaint. (2) Now that the DUI case had been pled out, and defendant had been sentenced on the misdemeanor, it would violate Kellett and section 654 to proceed with the current case, which should therefore be dismissed.


The prosecutor replied: (1) He did not originally file the felony and misdemeanor charges together because only Jackson’s testimony could prove the felony charges and she had not yet agreed to give it. (2) After she did, the prosecutor informed defendant and filed the felony complaint. (3) Because defendant did not move to consolidate the cases, he could not now complain of prosecutorial harassment.[3] (4) The prosecutor did not consolidate them because he considered them to be completely different charges involving two separate incidents; thus Kellett, supra, 63 Cal.2d 822, and section 654 did not apply.


The trial court denied defendant’s motion without prejudice.


Defense counsel then argued for the record: Under the Kellett rule as explained in People v. Britt (2004) 32 Cal.4th 944 (Britt), the prosecution could refuse to join the cases only if joinder was prohibited or severance permitted for good cause, or if the prosecution was not aware of more than one offense; neither exception applied here. The trial court did not respond.


After all the evidence had been presented at trial, defense counsel renewed his Kellett motion. The trial court denied it again without stating a reason.


After the jury’s verdict and the court trial of defendant’s prior strike, defense counsel again renewed the Kellett motion. He argued that the count on which the jury had convicted defendant, transporting a controlled substance, was based on the very act of driving that gave rise to his misdemeanor DUI conviction. The trial court disagreed, stating that defendant could have been convicted of transportation as an aider and abettor.


Analysis


“An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.” (§ 654, subd. (a); italics added.)


“An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated.” (Pen. Code, § 954 [section 954].)


Section 654’s ban on multiple prosecution is meant to guard against harassment. Because this purpose is distinct from that of the ban on multiple punishments, the rule against multiple prosecution may apply even where multiple punishments would be allowed. (Kellett, supra, 63 Cal.2d at p. 825.) To the same end, as well as to help avoid needless expense and repetition of evidence, section 954 requires joinder of related offenses in a single prosecution. (Kellett, supra, 63 Cal.2d at p. 826.) And because section 954 does not distinguish between felonies and misdemeanors, it authorizes the joinder of felony and misdemeanor counts in the same prosecution. (Kellett, supra, 63 Cal.2d at p. 826, fn. 3.)


In Kellett, supra, 63 Cal.2d 822, the defendant was arrested when he was standing on a public sidewalk with a pistol in his hand. (Id. at p. 824.) On that day, he was charged in municipal court with a misdemeanor violation of Penal Code section 417 (exhibiting a firearm in a threatening manner). (Ibid.) Thereafter, he was charged with a felony violation of Penal Code section 12021 (felon in possession of a firearm). (Ibid.) He then pled guilty to the misdemeanor and was sentenced to 90 days in the county jail. (Ibid.) Defendant then moved to dismiss the felony prosecution on the ground it should have been prosecuted with the misdemeanor. The motion was denied in the trial court, and defendant sought a writ of prohibition in the Supreme Court. (Ibid.)


The Supreme Court unanimously issued a writ of prohibition precluding further prosecution of the felony charge. (Kellett, supra, 63 Cal.2d 822, 829.) The court held, “[w]hen, as here, the prosecution is or should be aware of more than one offense in which the same act or course of conduct plays a significant part, all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or severance permitted for good cause. Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence.” (Kellett, supra, 63 Cal.2d at p. 827.)


We find the instant case undistinguishable from Kellett.


Here, the People do not argue that joinder of defendant’s misdemeanor DUI and felony drug charges was prohibited, and we do not see any grounds on which that argument could be made. Furthermore, the prosecutor admittedly knew of the possible felony charges when he brought the misdemeanor charge. Assuming his need for Jackson’s testimony was sufficient reason not to file the felony charges immediately, it ceased to be so when the prosecutor obtained immunity for Jackson on July 6, 2004. Yet even a month later, when he filed the felony complaint in case No. 04F5721, he did not move to consolidate it with the pending misdemeanor charge.


Like the prosecutor, the People mainly rely on section 654: they assert that “the same act or course of conduct” did not “play a significant part” in defendant’s misdemeanor DUI and his felony drug charges. (Cf. Kellett, supra, 63 Cal.2d at p. 827.) This position is untenable. As we have shown, all the charged offenses arose out of the same course of conduct. Defendant was convicted of transportation of a controlled substance. The DUI charge arose out of defendant’s driving of the same vehicle that contained the illegal drugs-the very basis of the transportation charge. In his closing argument, the prosecutor argued, “[Defendant] was driving the car. We know he was driving the car. Officer Hyatt testified to that.” It is too late in the day for the People to contend that defendant’s driving the car (the basis of the DUI) did not play a significant part in the transportation offense. The same course of conduct played “a significant part” in both misdemeanor and felony prosecutions. (Kellett, supra, 63 Cal.2d at p. 827.)


The People rely on People v. Hurtado (1977) 67 Cal.App.3d 633 (Hurtado) and People v. Martin (1980) 111 Cal.App.3d 973 (Martin), which held Kellett did not apply because the separately charged offenses were not based on the same course of conduct and had only minimal evidentiary “overlap.” (Martin, supra, 111 Cal.App.3d at 976-978; Hurtado, supra, 67 Cal.App.3d at pp. 636-637.)[4] We find these cases distinguishable.


In Hurtado, a case decided by the Second Appellate District, the defendant was arrested for drunk driving; then, while being handcuffed, he was detected trying to secrete a cigarette package containing heroin. He was convicted of unlawful transportation of heroin, as well as its possession and possession for sale, based on an information filed after he pled to the drunk driving charge. (Hurtado, supra, 67 Cal.App.3d at pp. 635-636.)


To decide the Kellett issue, the court used an “‘evidentiary’ test” the Second Appellate District had previously adopted to determine if “the Kellett criterion (whether the same act or course of conduct plays ‘a significant part’ with respect to each crime) is met.” Under that test, “if the evidence needed to prove one offense necessarily supplies proof of the other, . . . the two offenses must be prosecuted together[.]” (Hurtado, supra, 67 Cal.App.3d at p. 636, citing People v. Flint (1975) 51 Cal.App.3d 333, 338.) The court held that test was not met here: “[T]he evidentiary pictures which had to be painted to prove the drunk driving and narcotics


offenses were sufficiently distinct so as to permit separate prosecutions of the two offenses. Proof of the drunk driving charge was supplied primarily by the observations of the highway patrol officers made after defendant was stopped and given certain sobriety tests. Proof of the heroin charges hinged upon the discovery of the cigarette package filled with heroin, which occurred after the arrest for drunk driving had been made. Evidence in the two cases[] was for the most part mutually exclusive, the only common ground being the fact that defendant was in the moving automobile in possession of the heroin at the same time that he was under the influence of alcohol.” (Id. at pp. 636-637.)


Assuming Hurtado, supra, 67 Cal.App.3d 633, is correctly decided and its “‘evidentiary’ test” is a sound explication of Kellett, it is distinguishable. The prosecution contended here that defendant’s driving was not merely incidental to or coincidental with his transportation of cocaine base, but was the means by which he set out to commit that offense (thereafter forcing Jackson to take and attempt to dispose of the 19 grams of cocaine base he was transporting for the purpose of sale). Jackson testified that defendant habitually gave drugs to others to sell, while retaining control of the transaction and pocketing the proceeds. Thus, on the prosecution’s theory, defendant’s act of driving with Jackson as a passenger was an essential part of the course of conduct charged against him in the felony case. Therefore, unlike in Hurtado, supra, 63


Cal.App.3d at p. 637, the evidence as to the misdemeanor and the felony charges was not “for the most part mutually exclusive[.]”


Martin, supra, 111 Cal.App.3d 973, is also distinguishable. There, the defendant was arrested for possession of marijuana and of a sawed-off shotgun found in his car after a traffic stop. After he was booked, the police learned the shotgun had been reported stolen. Defendant pled guilty to the misdemeanor weapons and narcotic offenses. An information was then filed charging him with the burglary in which the shotgun was stolen. (Id. at p. 976.) It was undisputed the prosecution did not know of his involvement in the burglary when he pled to the misdemeanor charges. (Id. at p. 977.) He argued the prosecution should be charged with such knowledge, but the court disagreed because the burglary and the traffic stop were separate incidents as to time, place, and character. (Id. at pp. 977-978.) Thus, regardless whether “the same act or course of conduct play[ed] a significant part” in all the charged offenses (Kellett, supra, 63 Cal.2d at p. 827), Kellett did not apply because the prosecutor neither knew nor should have known of all the offenses at the relevant time - a fact which distinguishes Martin from our case. (Martin, supra, 111 Cal.App.3d at pp. 977-978; see Kellett, supra, 63 Cal.2d at p. 827.) In addition, defendant’s traffic stop and his alleged drug felonies were not separate in time or place, as in Martin.


Defendant asserts the trial court erred by failing to hold an evidentiary hearing to determine the exact nature of his


misdemeanor DUI conviction. The People reply that the court did not need to do so because counsel had sufficiently informed it about the misdemeanor case before it ruled on the Kellett motion. We agree with the People. It was undisputed that defendant’s DUI conviction arose out of the same act of driving on May 8, 2004, that gave rise to the charges in case No. 04F5721. (If there was any possible doubt on that point at the time of the original motion, defense counsel removed that doubt when he renewed the motion after trial.) Therefore, it is unnecessary to remand for an evidentiary hearing as defendant proposes.


Under Kellett, when the prosecution has improperly failed to join related offenses in a single prosecution, the defendant’s conviction of the later-charged offense cannot stand and the matter cannot be retried. (Kellett, supra, 63 Cal.2d at p. 827.) Therefore, we must reverse defendant’s conviction in case No. 04F5721. This conclusion moots defendant’s contention that the jury was not properly instructed as to Jackson’s accomplice status and the required corroboration of her testimony in that case.


II


Defendant contends as to both cases that the trial court erred by finding the allegation of his prior strike true. According to defendant, insufficient evidence supported that allegation. Our disposition of case No. 04F5721 moots


defendant’s contention as to that case. As to case No. 04F3579, we disagree.


Background


In case No. 04F3579, defendant was accused of having suffered a conviction in November 1996 for violating Penal Code section 245 (assault with a deadly weapon (section 245)), which conviction was alleged to qualify as a strike (Pen. Code, § 1170.12).[5]


In the court trial of the prior, the prosecutor offered the information in the 1996 case, which alleged as to this count: “On or about JUNE 23, 1996 the crime of ASSAULT BY MEANS OF FORCE LIKELY TO PRODUCE GREAT BODILY INJURY AND WITH DEADLY WEAPON AND INSTRUMENT in violation of Section 245(a)(1) . . . , a FELONY[,] was committed by [defendant], who did willfully and unlawfully commit an assault upon BURLIN GERMANY, with a deadly weapon, to wit, KNIFE, and by means of force likely to produce great bodily injury.” The information further alleged as to


this count that defendant “personally inflicted great bodily injury upon” the victim.[6]


The prosecutor also offered the minute order showing defendant’s guilty plea to the charge of violating section 245, subdivision (a)(1).


Having reviewed the materials produced by the prosecutor and heard argument, the trial court found that defendant had committed the offense charged and that that offense was a strike.


Analysis


A prior conviction counts as a strike if it is listed as a serious felony under Penal Code section 1192.7, subdivision (c). Since the passage of Proposition 21 in 2000, “assault with a deadly weapon . . . in violation of Section 245” has counted as a serious felony for this purpose, without regard to whether the defendant personally used the deadly weapon. (Pen. Code, § 1192.7, subd. (c)(31); People v. Luna (2003) 113 Cal.App.4th 395, 398 (Luna).) However, Proposition 21 did not affect the other part of section 245, subdivision (a)(1), assault “by any means of force likely to produce great bodily injury”; that offense still does not count as a serious felony unless it also


involves the use of a deadly weapon or results in the infliction of great bodily injury. (People v. Banuelos (2005) 130 Cal.App.4th 601, 605 (Banuelos).)


In a court trial of a prior, the trial court may look to the entire record of conviction to determine the nature of the prior offense. (People v. Rodriguez (1998) 17 Cal.4th 253, 261-262; People v. Guerrero (1988) 44 Cal.3d 343, 355-356.) In doing so, the court may look to the charging instrument so far as it shows the allegations the defendant subsequently admitted by plea. (People v. Reed (1996) 13 Cal.4th 217, 224; People v. Guerrero, supra, 44 Cal.3d at pp. 345, 356.)


Here, the trial court looked not only to defendant’s plea but to the information, which specifically alleges that defendant (1) committed assault with a deadly weapon, a knife, and (2) personally inflicted great bodily injury. Thus, the court could reasonably conclude that substantial evidence showed defendant’s guilty plea to an offense under “section 245, subdivision (a)(1)” was a plea to these allegations, which would suffice to prove his crime a serious felony under either prong of that provision.


Defendant argues to the contrary, relying on Banuelos, supra, 130 Cal.App.4th 601. Banuelos held that a guilty plea to an offense described in the abstract of judgment and a fingerprint card as “ASSAULT GBI W/DEADLY WEAPON” or “CT1 PC245(A)(1) ASSLT GRT BDLY INJ W/DDLY WPN” was not proved to be a serious felony because “[t]hese documents are completely


silent on the question of whether appellant personally used a deadly weapon or personally inflicted great bodily injury[.]” (Banuelos, supra, 130 Cal.App.4th at p. 605.) The court reasoned that the documents’ reference to both aspects of section 245, subdivision (a)(1), was inherently ambiguous and could not be taken to prove that the defendant committed the form of assault covered by the Three Strikes law. (Banuelos, supra, 130 Cal.App.4th at p. 606.)[7] However, Banuelos is distinguishable: so far as the opinion shows, the prosecution did not proffer the information, as in our case, but only the abstract of judgment and fingerprint card. (Id. at p. 605.)


Sufficient evidence supports the trial court’s finding that defendant committed a prior strike.


III


Defendant contends the trial court’s imposition of the upper term on count 2 in case No. 04F5721 violated his federal constitutional rights to jury trial and due process under Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely).) He acknowledges that this court must follow the contrary conclusion of our Supreme Court (People v. Black (2005) 35 Cal.4th 1238) and states that he raises the issue only to preserve it for federal review.


Our reversal of defendant’s conviction in case No. 04F5721 moots defendant’s contention as to that case. However, if the trial court on remand should impose an aggravated term in resentencing on defendant’s remaining conviction, we would reject any claim of Blakely error as to that resentencing. (People v. Black, supra, 35 Cal.4th 1238.)


IV


Defendant contends the minute order of January 13, 2005, and the abstract of judgment in case No. 04F3579 must be corrected to show that he was convicted of possession of cocaine base (Health & Saf. Code, § 11350), and not of possession of cocaine base for the purpose of sale (Health & Saf. Code, § 11351.5). The People correctly concede the point. Under our power to order the correction of a clerical error in the record at any time (People v. Mitchell (2001) 26 Cal.4th 181, 185), we shall direct the trial court on remand to make the necessary corrections.


DISPOSITION


Defendant’s conviction in case No. 04F5721 is reversed. His conviction in case No. 04F3579 is affirmed. The matter is remanded to the trial court with directions to resentence defendant in case No. 04F3579. The court is also directed to prepare a corrected abstract of judgment and minute order of January 13, 2005, in that case and to furnish certified copies


of the same to the Department of Corrections and Rehabilitation.


SIMS , Acting P.J.


We concur:


DAVIS , J.


HULL , J.


Publication courtesy of California pro bono legal advice.


Analysis and review provided by La Mesa Apartment Manager Attorneys.


[1] We discuss the circumstances under which the grant of immunity was issued more fully in part I of the Discussion, as they relate directly to defendant’s Kellett claim (Kellett, supra, 63 Cal.2d. 822).


[2] As to this case the People provide a single-paragraph “statement of facts” taken from the probation report, which they justify on the grounds that defendant does not challenge the facts supporting his convictions in this case. This is improper because the probation report was not in evidence before the jury. Like the appellant, the respondent must support every factual assertion with appropriate record citation. (Cal. Rules of Court, rule 14(a)(1)(C); Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379.) In a case that went through trial, appropriate record citation means citation to the evidence adduced at trial.


[3] To support this argument, which is not renewed on appeal, the prosecutor cited People v. Hartfield (1970) 11 Cal.App.3d 1073 (Hartfield). But that case does not stand for such a broad proposition. There, the court found that the prosecutor who had filed a misdemeanor charge against the defendant was unaware of a felony charge pending against him arising out of the same course of conduct. The defendant tried to exploit the prosecutor’s ignorance by pleading to the misdemeanor, then claiming his prosecution for the related felony was barred by section 654. (Hartfield, supra, 11 Cal.App.3d at pp. 1080-1081 & fn. 4.) As we explain below, the Kellett rule applies only where the prosecutor knows of both charges. Thus, Hartfield does not create an exception to Kellett. (See People v. Bas (1987) 194 Cal.App.3d 878, 883.)


[4] In his reply brief defendant asserts the People are barred from raising this argument because it was not raised below. We disagree. The prosecutor clearly argued that defendant’s misdemeanor DUI and his alleged drug felonies were separate acts based on separate incidents.


[5] The information did not specify a subdivision of section 245. However, all subdivisions of section 245 other than subdivision (a)(1) that specify the nature of the assault describe assaults with firearms. Thus, by not so specifying, and by describing the offense only as “assault with a deadly weapon,” the information impliedly charged the prior under subdivision (a)(1), which speaks of “an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury[.]”


[6] The information also alleged a count of attempted murder involving the same victim and the same means on the same date, together with the allegations that defendant personally used a deadly weapon (a knife) and personally inflicted great bodily injury upon the victim.


[7] The Banuelos court disagreed with the conclusion drawn by the court in Luna, supra, 113 Cal.App.4th 395, on essentially similar facts. (Banuelos, supra, 130 Cal.App.4th at p. 606; compare Luna, supra, 113 Cal.App.4th at pp. 398-399.)



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