P. v. Salas



















Filed 10/15/12
P. v. Salas CA5















NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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

FIFTH APPELLATE DISTRICT


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THE PEOPLE, Plaintiff and Respondent, v. CARLOS CHARLES SALAS, Defendant and Appellant.

F063143 (Super. Ct. No. VCF229182, VCF211418) O P I N I O N

THE COURThref="#_ftn1" name="_ftnref1" title="">^*

APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Tulare
County. Brett R. Alldredge, Judge.

Eleanor M.
Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Catherine Chatman and R. Todd
Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

In an information filed August 5, 2010, it was alleged
that appellant, Carlos Charles Salas, committed three counts of href="http://www.fearnotlaw.com/">indecent exposure in violation of Penal
Code section 314, subdivision (1) (section 314(1))href="#_ftn2" name="_ftnref2" title="">^[1]> (indecent
exposure; counts 1, 2, 3), and that he had suffered a prior conviction of that
offense, served two separate prison terms for prior felony convictions (§
667.5, subd. (b)), and previously suffered a “strike.”href="#_ftn3" name="_ftnref3" title="">^[2] On December 3, 2010, appellant pled not guilty
by reason of insanity.

On March 28, 2011 (March 28), the
date set for trial on the guilt phase, appellant pled no contest to each of the
charges and admitted the special allegations, and it was agreed appellant would
proceed to trial at a later date on the issue of whether he was sane at the
time of the charged offenses.

On April 27, 2011, a jury found appellant
sane at the time of the instant offenses.


On June 14, 2011, appellant
requested, pursuant to section 1385, that the court strike his strike
conviction. The court denied that
request and imposed a prison term of six years, consisting of the two-year
midterm on count 1, doubled pursuant to the three strikes law (§§ 667,
subd. (e)(1); 1170.12, subd. (c)(1)), for a total of four years, plus one year
on each of the two prior prison term enhancements. On each of counts 2 and 3 the court imposed
concurrent four-year terms.

On appeal,
appellant contends the court erred in sentencing him under the three strikes
law because, he asserts, the prosecution did not plead and prove that he had
suffered a strike conviction.

PROCEDURAL
BACKGROUND

In the
information, it was “alleged pursuant to Penal Code sections 1170.12(a) through
(d) and 667(b) through (i) ... that [appellant] has suffered [a] prior
conviction of a serious or violent felony or juvenile adjudication,” viz., a
conviction on July 16 1992, in Tulare County Superior Court case No. 32283
(case No. 32283) of assault with a deadly weapon other than a firearm or by
means of force likely to produce great bodily injury, in violation of former
section 245, subdivision (a)(1) (section 245(a)(1)).href="#_ftn4" name="_ftnref4" title="">^[3]

As indicated above, appellant
entered his no contest pleas on March 28.
Early in that proceeding, after an off-the-record discussion, the court
stated its understanding that appellant had agreed to “plead to the sheet for the
purposes of admitting guilt” to the charges set forth in the information filed
August 5, 2010, that he had “pled alternately to not guilty by reason of
insanity,” and he “will not waive that alternate plea for the purposes of that
portion of a trial which will be convened in a few weeks.”

Moments
later, in explaining the possible consequences of such a plea, the court
advised appellant he could receive a prison sentence of up to 10 years. Appellant confirmed he understood that.

Later, in the proceeding, there
appeared to be some confusion as to whether a conviction of violating section
314(1), as charged in each of the three counts in the information, would
qualify as a strike in any future felony prosecution. The prosecutor clarified that none of the
section 314(1) counts qualified as a strike, but noted, “[appellant] has a
prior strike .…” Defense counsel
confirmed that “[the information] makes reference to the prior strike.” At that point, the following exchange took
place:

“THE
COURT: All right. This [i.e., a violation of section 314(1)] is
not a strike. Do you understand that
because of your previous strike the court can enhance your sentence, that is
what gets us to the 10 years, do you understand that?

“[Appellant]: That I do, Your Honor.”href="#_ftn5" name="_ftnref5" title="">^[4]

Thereafter, the court told appellant,
inter alia, that the People had alleged that he had committed “indecent
exposure with priors,” that he had suffered two prior convictions “pursuant to
Penal Code section 667.5(b),” and that “[the People] are alleging that pursuant
to Penal Code section 1170.12 (a) through (d) and 667.5 (b) through (i) [>sic] you suffer[ed] a conviction in case
32283 for Penal Code Section 245(A)(1), a conviction was suffered on July 16,
1992.”href="#_ftn6" name="_ftnref6" title="">^[5] The court asked appellant, “... do you admit
those priors as I specifically articulated to you?” Appellant responded, “I do.”

DISCUSSION

Appellant
argues the court erred in imposing sentence under the three strikes law
because, he asserts, the prosecution did not plead and prove that appellant
suffered a strike conviction. This
assertion is based, in turn, on the claim that appellant “did not admit, and
was not specifically asked to admit” that the offense upon which the strike
allegation was based was, in fact, a strike.
The record belies this claim.

The three
strikes law is set forth in two separate, but substantively identical
statutes: section 667, subdivisions (b)
through (i), the version enacted by Legislature, and section 1170.12, which
contains five subdivisions, (a) through (e), the version added by initiative. The court, although it misspoke in citing the
legislatively enacted version, specifically and correctly referred to the
version of the three strikes law set forth in section 1170.12, telling
appellant the People had alleged a 1992 section 245(a)(1) conviction “pursuant
to” subdivisions (a) through (d) of section 1170.12.href="#_ftn7" name="_ftnref7" title="">^[6] And immediately thereafter the court asked
appellant if he admitted that and other prior conviction allegations, “as I >specifically articulated to you.” (Italics added.) By admitting the allegation that he had
suffered a prior conviction of violating section 245(a)(1) “as ... specifically
articulated,” i.e., “pursuant to” the three strikes law, appellant admitted
that he had suffered a prior conviction and
that that conviction qualified as a strike.


Moreover, we note that prior to
appellant entering his admission to the strike allegation, both the prosecutor
and defense counsel referred
specifically to appellant’s strike, and appellant affirmed, in response to a
question from the court, that he understood that because of his strike he would
receive the increased punishment mandated by the three strikes law. On this record, it is abundantly clear that appellant
understood he was admitting a strike allegation.

It appears
that appellant bases his contention that the prosecution did not plead and
prove he suffered a strike conviction on two factors. First, although the information alleged a
prior conviction of violating section 245(a)(1), a violation of that statute is
not necessarily a strike. Section 245(a)(1)
is a dual-pronged statute that punishes assaults “with a deadly weapon or
instrument other than a firearm,” and assaults that are committed “by any means
of force likely to produce great bodily injury.” (§ 245(a)(1).) To qualify as a strike, a prior conviction
must be for a serious felony (as defined in section 1192.7, subdivision (c)),
or a violent felony (as defined in section 667.5, subdivision (c)). (§§ 667, subd. (d)(1), 1170.12, subd.
(b)(1).) An assault with a deadly weapon
is always a serious felony and thus a strike (§ 1192.7, subd. (c)(31)). However, an assault by means of force likely
to produce great bodily injury is a serious felony only if the defendant
“personally inflicts great bodily injury on any person, other than an
accomplice, or ... personally uses a firearm”
(§ 1192.7, subd. (c)(8)), or “personally used a dangerous or deadly
weapon” (§ 1192.7, subd. (c)(23)), and such an assault is a violent felony only
if the defendant “inflicts great bodily injury on any person other than an
accomplice” under certain enumerated statutes or “uses a firearm”
(§ 667.5, subd. (c)(8)) under other certain enumerated statutes. Because the record does not establish that
the prior conviction alleged as a strike was a conviction of a serious or
violent felony, appellant suggests that the court’s finding that appellant
suffered a strike was based on “insufficient evidence.”

Second, appellant argues that the
record demonstrates the true finding on the strike allegation was based on
“incorrect ... evidence.” In this
regard, he notes the following: The
information alleged as a strike a July 16, 1992 section 245(a)(1) conviction in
case No. 32283. However, the report of
the probation officer (RPO) indicates that although appellant suffered a prior
conviction of that offense on that date, it was not in case No. 32283. Rather, according to the RPO, appellant
suffered a conviction of violating “[section] 245(a)” on July 16, 1992, in
Tulare County Superior Court case No. TCF040523-92. In case No. 32283, the RPO indicates,
appellant was convicted in 1993, not 1992, of violations of 245(a)(1) and 245,
subdivision (c) (assault with a deadly weapon other than a firearm or by means
of force likely to produce great bodily injury on a peace officer or
fireman). Although the latter offense
qualifies as a strike, neither of these convictions was alleged as a strike in
the instant case.

Appellant’s claims that the evidence
was “incorrect,” or insufficient to support the true finding on the strike
allegation, are foreclosed by his admission of that allegation. A plea of guilty or no contest “admits all
matters essential to the conviction.” (>People v. DeVaughn (1977) 18 Cal.3d 889,
895. “‘Admissions of enhancements are
subject to the same principles as guilty pleas.
[Citation.] A guilty plea admits
every element of the offense charged and is a conclusive admission of guilt. [Citations.]
It waives any right to raise questions about the evidence, including
its sufficiency. [Citation.]’” (People
v. Fulton (2009) 179 Cal.App.4th 1230, 1237, italics added, disapproved on
another point in People v. Maultsby
(2012) 53 Cal.4th 296, 303-304.) “A
defendant may admit an enhancement for a variety of reasons: as part of a plea
bargain, ...; to obtain a perceived tactical advantage, such as keeping the
convictions from the ken of the jury, ...; because he believes it futile to
contest the prosecution’s proof; or simply because he honestly knows the allegations
to be true.” (People v. Thomas (1986) 41 Cal.3d 837, 844.)

The case of People v. Pinon (1979) 96 Cal.App.3d 904 is instructive. There, the defendant had pled guilty to
possession of a firearm by a convicted felon.
(Id. at p. 907.) On appeal, he argued “that the plea was
invalid because the record does not reflect a factual basis for the plea and
that his prior conviction was a misdemeanor, not a felony.” (Ibid.) The court in Pinon recognized the
claim went “to the question of guilt or innocence” and that the issue had “been
‘removed from consideration’ by the guilty plea. [Citation.]”
(Id. at p. 910.) The court
reasoned that the issues “sought to be raised do not attack the proceedings
resulting in the plea. Rather,
defendant’s contention that the prior conviction was a misdemeanor rather than
a felony, and the related contention that counsel was incompetent, go solely
and directly to the question whether he was in fact guilty of the charged
offense. However, his plea of guilty
‘operated to remove such issues from consideration as a plea of guilty admits
all matters essential to the conviction.’
[Citations.] Consequently, these
issues are simply not cognizable on the present appeal, whether or not
defendant obtained a certificate of probable cause.” (Ibid.)

The case of People v. Lobaugh (1987) 188 Cal.App.3d 780 is also
instructive. In that case, the defendant
pled guilty to robbery and admitted, inter alia, a firearm use enhancement
allegation. On appeal, the defendant
sought to challenge the sufficiency of the evidence to support the firearm use
enhancement. (Id. at p. 785.) Although the
defendant had failed to secure a certificate of probable cause, the appellate
court concluded the issue would not have been cognizable on appeal even if the
trial court had granted a certificate of probable cause, reasoning that “any
error relating to the sufficiency of the evidence does not go to the legality
of the proceeding, was waived by his guilty plea and may not be raised on
appeal.” (Ibid.)

Although the three strikes law is
not, strictly speaking, an enhancement, the forgoing principles governing
guilty pleas and admissions of enhancements apply with equal force to
admissions of strike allegations. (See >People v. Superior Court (Romero) (1996)
13 Cal.4th 497, 527 [“The Three Strikes law ... articulates an alternative
sentencing scheme for the current offense rather than an enhancement”].) Appellant’s admission of the strike
allegation precludes appellate review of any claim that the evidence supporting
that allegation was insufficient or “incorrect.”

DISPOSITION

The judgment is affirmed.