P. v. Nguyen

Filed 9/29/06 P. v. Nguyen CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, James A. Stotler, Judge. Affirmed.

Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

The trial court did not err when it found defendant’s prior juvenile adjudications qualified as strikes under the “Three Strikes” law. (Penal Code § 667; unless otherwise noted, all further statutory references are to the Penal Code.) We affirm.

I

FACTS

On May 13, 2005, defendant Minh Tan Nguyen pled guilty to count one, violation of section 245, subdivision (a)(1) and an enhancement under section 186.22, subdivision (b). He also pled guilty to count three, violation of section 186.22, subdivision (a). He attached two addenda to the guilty plea form.

Addendum A has three paragraphs. The last one reads: “I understand and agree that if the Court makes a finding beyond a reasonable doubt that the two prior strikes alleged in the Indictment are not legally valid strikes, my maximum Penalty will remain the 9 years and 8 months reflected on page 1 of my Guilty Plea form. I further understand and agree that if the Court makes a finding beyond a reasonable doubt that the two prior strikes alleged in the Indictment are not legally valid strikes, the People are going to recommend to the Court that I be sentenced to a term of 3 years in State Prison.” (Boldface in original.) It is signed by defendant. Below his signature is his counsel’s signature under a statement which reads: “I have explained to the defendant the legal consequences of the terms listed in this addendum.” Addendum B recites the factual basis for defendant’s guilty plea.

The court reiterated the agreement: “And so my understanding here is we’re going to have a court trial on the two priors and assuming . . . . [t]hat I find those two priors true then, even so, the district attorney will be moving to strike those two priors and the defendant will be sentenced to an agreed-upon sentence of seven years.

. . .

But it’s also contemplated by both of you and agreed upon by both of you that, if legally speaking those strikes are not strikes, then the appropriate sentence in this case as negotiated between you two is three years in state prison.” Both counsel agreed.

The court had another point clarified when it asked the prosecutor: “[D]id you contemplate what the result of this would be on appeal if the Court of Appeal finds that only one strike is invalid? That is, is it a seven-year sentence or a three-year sentence?” The prosecutor responded: “I think, based on the argument we both made, it’s all or nothing because of the application of the Penal Code section they’re going to find they’re both strikes or they’re not strikes.” Defense counsel added: “That is likely the result.”

After defendant’s guilty plea was entered, the court found the two prior allegations pursuant to section 667, subdivisions (d) and (e), based upon a juvenile adjudication, to be true, reasoning defendant entered a guilty plea to the charges alleged: “And so my feeling is that count 1 was a plea to assault with a deadly weapon, as well as to an assault by means of force likely to produce great bodily injury. And therefore, . . . the defendant has a strike because of the 245(a)(1) allegation, and under the reasoning of Garcia, has a second strike under 186.22(a).”

The court struck both strikes for purposes of punishment on the motion of the district attorney. Defendant was sentenced to seven years in prison. He was given two years each for counts one and three to run concurrently. For the enhancement under count one, the court imposed five years.

On appeal, defendant argues the court erred when it found his prior juvenile adjudications to be strikes under the Three Strikes law. Not surprisingly, the Attorney General disagrees, but further contends the appeal should be dismissed because defendant did not obtain a certificate of probable cause.

II

DISCUSSION

Certificate of probable cause

“No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty . . . except where both of the following are met:

(a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.

(b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.” (§ 1237.5.) California Rules of Court, rule 30 (b)(4)(B) provides an exception to the requirement for filing a certificate of probable cause for “grounds that arose after entry of the plea and do not affect the plea’s validity.”

The agreement between the parties was submitted to the trial court prior to the plea. The court questioned counsel at length about the agreement. Defendant’s grounds on appeal arose separate and apart from and after entry of the plea, and do not affect the validity of his plea. We find no certificate of probable cause was required under these circumstances.

Defendant’s juvenile adjudications

Defendant contends there was insufficient evidence presented to the trial court to support the court’s findings that his prior juvenile adjudications for assault with a deadly weapon and street terrorism were strikes. He argues neither crime is listed in Welfare and Institutions Code section 707, subdivision (b).

Section 667, subdivisions (d)(3) states: “A prior juvenile adjudication shall constitute a prior felony conviction for purposes of sentence enhancement if:

(A) The juvenile was 16 years of age or older at the time he or she committed the prior offense.

(B) The prior offense is listed in subdivision (b) of Section 707 of the Welfare and Institutions Code or described in paragraph (1) or (2) as a felony.

(C) The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law.

(D) The juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code.”

The Attorney General concedes the crimes of assault with a deadly weapon and street terrorism are not on the list in Welfare and Institutions Code section 707, subdivision (b). But the Attorney General argues defendant was adjudged a ward of the court for the crime of assault with a deadly weapon and by means of force likely to produce great bodily injury, which is listed in Welfare and Institutions Code section 707, subdivision (b). Defendant says the documents presented to the trial court demonstrate he was adjudged a ward only for assault with a deadly weapon and not for assault with means of force likely to produce great bodily injury.

Defendant asks us to look at the evidence submitted to the trial court when it was trying him for the allegations of prior crimes. He cites People v. Rodriguez (1998) 17 Cal.4th 253, 261-262, for the proposition the trier of fact may consider the entire record of a prior conviction.

At trial, defendant caused the November 25, 2003 reporter’s transcript of defendant’s admission to the juvenile court to be admitted as exhibit A. The prosecutor had a certified copy of defendant’s plea to the juvenile court admitted as exhibit No. 1. That packet includes the petition, the detention report, a subsequent petition, an advisement of Constitutional rights, a disposition agreement, two minute orders, a list of gang terms and conditions and a probation report.

The detention report states that Westminster police officers were dispatched to an apartment complex on July 21, 2002. Witnesses told police officers they observed the victim being beaten by six subjects yelling “Dragon Family.” A 15-year-old victim was most seriously injured; he suffered head lacerations requiring stitches and staples, a contusion to his head as well as a contusion to his wrist. An adult victim was punched several times. Defendant was identified as being one of the assailants.

The subsequent petition alleges: “Count 1: On or about July 21, 2002, SAID MINOR, in violation of Section 245(a)(1) of the Penal Code (ASSAULT WITH A DEADLY WEAPON), a FELONY, did willfully and unlawfully commit an assault upon KEVIN NGUYEN with a deadly weapon, METAL TOOL, and by means of force likely to produce great bodily injury.” (Emphasis in original.) The November 23, 2003 minute order, included within exhibit No. 1, states defendant admitted the allegations of the amended petition.

In the advisement of Constitutional rights document, it states defendant admitted to violating section 245, subdivision (a)(1) and section 186.22, subdivision (a). It further states: “My attorney has advised me that admission of the crime(s) of 245(a)(1), 186.22(a) listed as Count(s) 1 & 2 shall/may constitute an admission that I committed one/or more ‘Strike’ offenses under the Three Strikes Law. I have discussed with my attorney the possible consequences of admitting to such ‘Strike’ offense(s).” That term is initialed by defendant. Defendant offered the following facts to support his plea: “On 7/21/02, while in Orange County, Si Nguyen and I assaulted Kevin Nguyen with a deadly weapon. On 7/21/02 I was an active participant of Dragon Family Junior and had knowledge that it was a street gang that engaged in a pattern of criminal activity as defined in Penal Code section 186.22. Further, I committed this crime for the benefit of, at the direction of, and in association with Dragon Family gang with the specific intent of further criminal activity for the gang.”

People v. Rodriguez, supra, 17 Cal.4th 253 and People v. Banuelos (2005) 130 Cal.App.4th 601, cited by defendant are distinguishable from the facts in the instant case. In Rodriguez, the People’s only evidence was an abstract of judgment which stated “ASLT GBI/DLY WPN.” The court said that reference to a crime, standing alone, did not prove that defendant had pled guilty to a serious felony. (People v. Rodriguez, supra, 17 Cal.4th at p. 261.) In Banuelos, the prosecution’s only evidence of a prior conviction were an abstract of judgment and a fingerprint card. The only reference to a crime on the abstract of judgment read “ASSAULT GBI W/DEADLY WEAPON.” The court stated: “Although the notation could be read to mean that the assault was committed both by means of force likely to produce great bodily injury and with a deadly weapon, it could also be construed as a shorthand description of the criminal conduct covered by section 245, subdivision (a)(1)--assault by means of force likely to produce great bodily injury or with a deadly weapon.” (People v. Banuelos, supra, 130 Cal.App.4th at p. 606.)

The prosecution in the case before us proved its case with significantly more evidence than in the cases cited by defendant. The amended pleading not only stated the crime was committed with a deadly weapon, it alleged it was also committed “by means of force likely to produce great bodily injury.” The minute order reflects defendant admitted the allegations of the amended petition. Additionally, we know a metal tool was used to bash a victim’s head, and the victim required stitches and staples in his head. Accordingly, we find the trial court did not err when it concluded that as a juvenile defendant was adjudged a ward of the court for assault by means of force likely to produce great bodily injury, a crime that is listed under Welfare and Institutions section 707, subdivision (b) as well as for assault with a deadly weapon. (Welf. & Inst. Code, § 707, subd. (b)(14).)

We next consider defendant’s admission of violating section 186.22, subdivision (a) when he was a juvenile. Neither party disputes that, if we hold defendant was adjudged a ward because of at least one offense listed in Welfare and Institutions Code section 707, subdivision (b), that defendant’s juvenile adjudication under section 186.22 also qualifies as a strike. That is, a prior adjudication for a crime listed in sections 667, subdivision (d)(1) and 1192.7 qualifies as a prior strike under the Three Strikes law only if the defendant in the prior juvenile proceeding was adjudged a ward for at least one offense listed in Welfare and Institutions Code section 707, subdivision (b). (People v. Garcia (1999) 21 Cal.4th 1, 13.)

In People v. Garcia, supra, 21 Cal.4th 1, the court stated: “To summarize, we interpret section 667, subdivision (d)(3) according to its terms, without adopting any of the rewritings proposed by the parties and lower courts. Under paragraph (B), 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 juvenile proceeding, was adjudged a ward because of at least one offense listed in section 707(b).” (Id. at p. 13.)

Thus, vis-Ã -vis defendant’s section 186.22, subdivision (a) adjudication, the requirements to treat it as a strike under section 667, subdivision (d)(3) are met. Defendant was 17 when he violated section 186.22. Violation of section 186.22 is on the list described in paragraph (1) of section 667, subdivision (d). (§ 1192.7, subd. (c)(1)(28).) The juvenile court found defendant to be a fit and proper subject to be dealt with under juvenile court law. Finally, as noted above, defendant was adjudged a ward of the juvenile court because he committed an offense listed in Welfare and Institutions Code section 707, subdivision (b).

Additionally, even were we to conclude defendant admitted to only committing an assault with a deadly weapon, such an admission was sufficient to conclude he committed an offense listed in Welfare and Institutions Code section 707, subdivision (b) as described in section 667 subdivision (d)(3)(D). A deadly weapon is one likely to produce great bodily injury. (In re Pedro C. (1989) 215 Cal.App.3d 174, 182.)

In People v. Aguilar (9197) 16 Cal.4th 1023, the defendant was convicted of violating section 245, subdivision (a)(1) after using his hands and feet to commit an assault. The Supreme Court reasoned that, since hands and feet are not inherently deadly weapons, the jury must have found the defendant committed an assault by means of force likely to produce great bodily injury. (Id. at p. 1035.)

A metal tool is no more inherently a deadly weapon than hands and feet. Under the reasoning of People v. Aguilar, supra, 16 Cal.4th 1023, because the juvenile court found defendant committed an assault with a deadly weapon, a metal tool, and by means of force likely to produce great bodily injury in violation of section 245, subdivision (a), it necessarily had to have found defendant committed an assault by means of force likely to produce great bodily injury. Accordingly, an assault with a deadly weapon necessarily includes an assault by means likely to produce great bodily injury.

The trial court did not err when it found defendant’s juvenile adjudications qualified as prior strikes under the Three Strikes law.

III

DISPOSITION

The judgment is affirmed.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

O’LEARY, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.