P. v. Banuelos

Filed 3/26/08 P. v. Banuelos CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Abel Banuelos appeals from the judgment and order entered following a retrial of the allegations concerning a 1992 prior conviction of a Penal Code section 245, subdivision (a)(1) assault.[1] (See People v. Banuelos (2005) 130 Cal.App.4th 601, 608 (Banuelos I).) The trial court again found that appellant's 1992 conviction was a serious felony within the meaning of sections 667, subdivision (a) and a "strike" pursuant to section 1170.12, and sentenced him to 11 years in state prison. Appellant contends that the record was insufficient to demonstrate that the prior conviction qualified as a serious felony and a strike, and that he was denied effective assistance of counsel because trial counsel failed to object to the only inadmissible evidence upon which the trial court based its findings. He also petitions for a writ of habeas corpus seeking an order vacating the judgment on the ground of ineffective assistance of counsel. On October 11, 2007, this court ordered that the appeal and the writ of habeas corpus would be considered together. By separate order, we deny the writ petition. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In Banuelos I, appellant challenged his convictions of making a criminal threat and resisting a peace officer. He also challenged his sentence to state prison for 11 years, consisting of the three-year upper term on the criminal threats count, doubled under the Three Strikes law, plus a five-year section 667, subdivision (a) enhancement. Both the strike and the five-year enhancement were based on his 1992 conviction under section 245, subdivision (a)(1), which prohibits the commission 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." Because the record did not support the trial court's finding that the prior assault qualified as a serious or violent felony within the meaning of the relevant sentencing provisions, we reversed that finding, vacated the sentence, and remanded the case to the superior court.

During the retrial of the 1992 conviction allegations, the court indicated, "I do have before me the court file in case NA012971" and "what was contained in the court file that would be pertinent for purposes of the determination here, in the information filed October the 30th, 1992, charging [appellant] with the crime of assault/great bodily injury and with deadly weapon in violation of Penal Code section 245, subdivision [(a)(1)], the victim allegedly being a Robert Sulsona . . . , the deadly weapon being alleged as an automobile."[2] It then stated, "Next of pertinence is a minute order dated the 20th of November, 1992, indicating that on that date, [appellant] entered a plea of no contest to that charge and was immediately thereafter committed to the state prison for the low term of two years." It also mentioned the preliminary hearing transcript, and stated, "Having taken judicial notice of the contents of the court file, clearly there was a conviction for that offense."

The prosecutor and counsel for appellant argued about whether the evidence presented during the preliminary hearing showed that there was an assault with a deadly weapon. The court then noted that the preliminary transcript indicated that appellant "was driving . . . a Chevrolet Blazerand that he, after having had a series of encounters with the victim . . . , drove his vehicle in reverse into the victim's vehicle, causing significant, substantial damage to that vehicle," and it found "the prior conviction to be true within the meaning of [the] Three-Strikes law and section 667 [subdivision (a)(1)]." The court reinstated the original sentence "for a total of 11 years in . . . prison," including the three-year upper term on the criminal threats count, doubled under the Three Strikes law, plus a five-year section 667, subdivision (a) enhancement.

DISCUSSION

Appellant first contends that the record was insufficient to demonstrate that the prior conviction qualified as a serious felony. We disagree. A finding of a prior felony conviction must rest upon substantial evidence. (People v. Rodriguez (1998) 17 Cal.4th 253, 261-262.) In assessing a claim of insufficient evidence, we review the entire record to determine whether it discloses reasonable and credible evidence to allow a reasonable trier of fact to determine guilt beyond a reasonable doubt. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) In this task, we view the evidence and draw all reasonable inferences therefrom in favor of the judgment. (Ibid.)

Appellant claims that the court's finding that his prior conviction was assault with a deadly weapon is supported only by testimony from an inadmissible, uncertified preliminary hearing transcript. While the preliminary hearing transcript was inadmissible because it was not certified as required by section 869, other evidence in the record supports the court's findings.

In determining whether a prior conviction is a serious felony, the trier of fact can consider the charging documents. (People v. Harrell (1989) 207 Cal.App.3d 1439, 1444; People v. Abarca (1991) 233 Cal.App.3d 1347, 1350.) Here, as the court below noted before making its findings, the file included the information which alleged that appellant "did willfully and unlawfully commit an assault upon Robert Sulsona with a deadly weapon, to wit, automobile, and by means of force likely to produce great bodily." It also noted that the minute order reflected that appellant had entered a plea of no contest to the charged offense. Contrary to the record in Banuelos I, the evidence considered by the court upon retrial of the prior conviction clarified that appellant was charged with assault with a deadly weapon, "to wit, automobile," and with assault by means of force likely to produce great bodily injury. That evidence supports the trial court's findings that the prior conviction allegations of sections 667, subdivision (a) and 1170.12 are true.

Appellant also claims that trial counsel was ineffective because he failed to object to the inadmissible preliminary hearing transcript. In order to establish a violation of the right to effective assistance of counsel, a defendant must show that counsel's performance was inadequate when measured against the standard of a reasonably competent attorney, and that counsel's performance prejudiced defendant's case in such a manner that his representation "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Strickland v. Washington (1984) 466 U.S. 668, 686.) Moreover, "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." (Id. at p. 697.) Prejudice is shown when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (In re Sixto (1989) 48 Cal.3d 1247, 1257; Strickland, at p. 694.) Because other evidence supported the trial court's findings, appellant cannot show that he was prejudiced by counsel's performance. We therefore reject his ineffective assistance of counsel claim. (See Strickland, at p. 697.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

PERREN, J.

Andrew C. Kauffman, Judge

Superior Court County of Los Angeles

______________________________

Christopher C. Hawthorne, under appointment by the Court of Appeal, for Petitioner, Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Rama R. Maline, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code.

[2] At appellant's request, we have taken judicial notice of the superior court file in People v. Banuelos (Super. Ct. Los Angeles County, 1992, No. NA012971), including the preliminary hearing transcript.