P.v. Chapman
Filed 2/9/09 P.v. Chapman CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, Plaintiff and Respondent, v. KURT ERIC CHAPMAN, Defendant and Appellant. | G039784 (Super. Ct. No. 07HF0227) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, William L. Evans, Judge. Affirmed.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.
In 1992, appellant was convicted in Colorado of criminally negligent homicide. Following appellants conviction in the present case, the trial court determined his Colorado prior constituted a serious felony conviction under California law. It therefore enhanced appellants sentence by five years pursuant to Penal Code section 667, subdivision (a)(1)[1]. Appellant contends there is insufficient evidence to support imposition of the enhancement, but we disagree and affirm the judgment.
PROCEDURAL BACKGROUND
Appellant was convicted by a jury of assault with a deadly weapon and misdemeanor hit and run. Relying on appellants Colorado prior, the trial court then found appellant had suffered a strike conviction under section 667, subdivisions (b)-(i), and a serious felony conviction within the meaning of section 667, subdivision (a)(1). At sentencing, the court dismissed the strike conviction in the interests of justice and imposed a seven-year prison term, representing two years for the assault, plus five years for the prior serious felony conviction.
In finding appellants Colorado conviction constituted a serious felony, the trial court relied on the charging documents and guilty plea in appellants Colorado case. Those documents show appellant was charged with two counts of vehicular manslaughter and one count of criminally negligent homicide. They also show appellant pled guilty to the latter count and was sentenced to six years in prison.
The trial court also relied on an opinion from the Colorado Court of Appeals, in which the court affirmed the judgment against appellant. As pertinent here, the appellate court decided, The record supports the trial courts conclusion that [appellants] consumption of alcohol on the day of the offense contributed to the crime. It also establishes that [appellant] was speeding and acting with reckless disregard for other people on the roadway which caused the death of a 16-year-old pedestrian.
DISCUSSION
Appellant contends there is insufficient evidence to support the trial courts finding his Colorado conviction constitutes a serious felony under California law. We disagree.
Section 667, subdivision (a)(1), states that any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.
Under this provision, a defendant whose prior conviction was suffered in another jurisdiction is subject to the same punishment as a person previously convicted of an offense involving the same conduct in California. [Citation.] Enhancement is only permissible when the conduct underlying the foreign conviction would meet all of the elements of the California offense. [Citation.] (People v. Crane (2006) 142 Cal.App.4th 425, 433.) In deciding this issue, the trier of fact may look to the entire record of the prior conviction, including any appellate opinions respecting the conviction. (People v. Woodell (1998) 17 Cal.4th 448, 452-457; People v. Myers (1993) 5 Cal.4th 1193, 1201; People v. Guerrero (1988) 44 Cal.3d 343, 355.) And if there is substantial evidence the conduct underlying the prior conviction amounts to a serious felony, we must affirm the decision to impose the enhancement. (People v. Rodriguez (2004) 122 Cal.App.4th 121, 129.)
For purposes of section 667, subdivision (a)(1), a serious felony includes any felony in which the defendant personally inflicts great bodily injury on a person other than an accomplice. ( 667, subd. (a)(4); 1192.7, subd. (c)(8).) Appellant pretty much concedes the injury requirement. He has little choice; the record of his Colorado conviction clearly shows he personally inflicted great bodily injury on a nonaccomplice by speeding and causing the death of a 16-year-old pedestrian. Appellants primary argument is that his Colorado conviction does not constitute a felony under California law. He is wrong.
Appellant was convicted in Colorado of criminally negligent homicide. (Colo. Stat., 18-3-105.) To be guilty of that offense, the defendant must engage in conduct that exhibits a gross deviation from the standard of reasonable care. (People v. Nhan Dao Van (Colo. 1984) 681 P.2d 932, 935.) We know from the appellate opinion respecting appellants Colorado conviction that he acted with gross negligence by drinking and speeding while driving and that this led to the death of a teenage pedestrian. We also know that in California, such conduct amounts to vehicular manslaughter and is punishable as a felony.[2] Therefore, the record amply supports the trial courts conclusion appellant suffered a prior serious felony conviction within the meaning of section 667, subdivision (a)(1).
Appellant also contends the trial court erred in considering the appellate opinion respecting his Colorado conviction. He argues this amounted to improper fact-finding by the trial court and effectively violated his right to a jury trial (see Apprendi v. New Jersey (2000) 530 U.S. 466; Shepard v. United States (2005) 544 U.S. 13), but we are not persuaded. The California Supreme Court has decided that appellate opinions are generally part of the record of conviction, and a trial court may properly consider such opinions and the facts therein in determining whether a prior conviction allegation is true. (People v. Woodell, supra, 17 Cal.4th at pp. 454-457.) As a lower appellate court, we are not at liberty to second-guess these decisions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The California Supreme Court has also observed that Apprendi and its progeny do not preclude a court from making sentencing determinations related to a defendants recidivism. (People v. McGee (2006) 38 Cal.4th 682, 707.) In fact, it is entirely proper for a court to make factual findings based on judicial records in determining whether a prior conviction constitutes a qualifying offense under Californias sentencing scheme. (Ibid.; People v. Jefferson (2007) 154 Cal.App.4th 1381, 1386-1388.) Therefore, the trial court did not err in considering the appellate opinion in appellants Colorado case.
DISPOSITION
The judgment is affirmed.
BEDSWORTH, ACTING P. J.
WE CONCUR:
MOORE, J.
FYBEL, J.
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[1] Unless noted otherwise, all further statutory references are to the California Penal Code.
[2] See section 192, which includes in its definition of manslaughter the nonmalicious killing of a human being that results from [d]riving a vehicle in the commission of an unlawful act, not amounting to a felony, and with gross negligence[.] ( 192, subd. (c)(1).)
