P. v. Robinson

Filed 12/3/08 P. v. Robinson CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

Defendant Larry Robinson was convicted by a jury of one count of assault with a deadly weapon (Pen. Code,  245, subd. (a)(1))^[1]and one count of making criminal threats ( 422). He was sentenced as a three strikes felon to two concurrent state prison terms of 25 years to life, with the possibility of parole, plus a determinate 15-year term on prior felony enhancements.

Eschewing any semblance of discretion in choosing his arguments, defendant inundates us with a plethora of claims ranging from the plausible to the ridiculous, including evidentiary and instructional error, prosecutorial misconduct, ineffective assistance of counsel and sentencing errors. We shall reverse two of the trial courts strike findings and otherwise affirm the judgment.

FACTUAL BACKGROUND

On January 10, 2006, 14-year-old Nicholas J. and his 12-year-old younger brother, R.J., were living in a home with their mother, older sister Louise W., and other siblings, near Valley High School in Sacramento.

Around 7:00 p.m., the boys mother said she saw someone in a car outside their house, and asked Nicholas and R.J. to check to see if anyone was there.

The two boys emerged from the house. R.J., the younger boy, was carrying a pole or a stick. As they approached the car, they saw defendant, whom they recognized, slumped over in the back seat of the car. He seemed to be drinking something.

One of the boys threw a cup at the car.^[2] Defendant then tried to open the car door, but the boys pushed against it, trying to keep it shut. Defendant forced the door open. Nicholas tried to run away, but defendant grabbed him by the shirt from behind, ripping it. Defendant reached into his back pocket, pulled out a knife with a four- or five-inch-long blade and yelled, Ill kill you motherfucker, or Ill stab you motherfucker, and swung the knife at Nicholas twice, extending his right arm with a crossing motion.

R.J. hit defendant with the stick, causing him to let go of Nicholas. Both brothers then took off running down the street, with defendant in pursuit. He chased them into a school yard and cornered them in front of a locked gate. Defendant reached into his pants and yelled, I have a gun. At this point, the boys sister Louise arrived, wielding a hoe or long pole, and threatened to hit defendant with it. Defendant fled, still holding the knife and dropping a bottle along the way.

A patrol officer responding to a dispatch call spotted defendant jumping over a fence and apprehended him in the back yard of a house. He conducted a pat-down search of defendant and recovered a box-cutter knife with a concealed blade. A steak knife was also found in the front yard of the property.

Defense

Defendant testified that he was acquainted with Nicholas and R.J., since their mother is his brothers girlfriend. On the evening in question, he was waiting in a car outside their house because he wanted to talk to his girlfriend Edna, who had been staying there for a couple of days.

He heard the garage door open and the two boys came out, throwing stuff at the car. Defendant thought Nicholas had thrown a screwdriver and R.J. a bottle at the car. He tried to get out to see what was going on, but the boys were pushing the door shut. When defendant finally managed to get out, he noticed a knife on the ground. He picked it up and, holding it above his head, he said, Whats going on here? Why you all out here with knives? He told the boys he was going to tell their mother they were attacking him and throwing knives. He then put the knife in his pocket.

Defendant acknowledged grabbing Nicholas and ripping his shirt, to find out . . . what was going on. When he did so, R.J. hit him with a stick and defendant took off running. According to defendant, the boys chased him down the street, not the other way around. Both boys had weapons in their hands. They came after him, swinging and throwing stuff at me. Defendant finally stopped running, because he was out of breath. Trying to scam [his] way out of the situation, he told them, You all come up near me anymore, Im going to pull out my gun and shoot you. He was unarmed, but said it to scare them off. The boys sister Louise then approached with a stick in her hands, telling him you shoot my brother, Ill hit you with this stick. Louise struck him on the shoulder with the stick and defendant tore off running again. He admitted jumping over a fence to elude a police officer because he had a bad experience about 30 years ago when the police knocked all his teeth out and broke his nose. He threw the knife away to avoid a conflict with the officer.

DISCUSSION

I. Prosecutorial Misconduct

Nicholas testified that when he and his brother first saw defendant, he appeared to be drinking something while slumped in the back seat of the car. He also testified that as defendant fled the school yard, he dropped a bottle, which I think . . . was liquor. R.J. said he saw defendant with a bottle containing blue stuff in it. Louise testified that when she confronted defendant, he had a knife in his back pocket and a beer bottle in his hand.

On cross-examination, the prosecutor asked defendant if he had been drinking that evening. Defendant denied it. The prosecutor then asked defendant if he, in fact, was housed at detox that night. Defendant answered no. The prosecutor then offered to show defendant the booking form describing where he was housed. Defendant declined, stating, I know where I was housed at. The prosecutor repeated, And isnt it true you were housed at detox? whereupon defendant replied, Not for alcohol.

In her rebuttal argument, the prosecutor stated: He [defendant] sat up there and tried to make you guys believe that he is this great person, that he was just trying to talk some sense to these kids like why do you have the knife? Why are you doing this? . . . Thats what he wants you to believe, that he was just acting as this very nice guy. . . . [] . . . [] And you know his story was all about making him look good. Think about the end of the line of questioning yesterday when I was talking to him about whether he was drunk and where he was housed in jail. He didnt want to tell you he had been drinking. He didnt want to tell you that he was drunk, and why not? Because it makes him look bad. How would you guys look at him if you had this drunk idiot swinging the knife at little kids when its dark outside, threatening to kill them? You guys wouldnt think very highly of him at that point. So he tries to suppress that, tries to make it sound like, no, I was stone-cold sober. I dont even need to look at that. I know where they housed me. Wouldnt even look at the evidence that was confronting him because that made him look bad.

Defendant claims the prosecutor committed reversible misconduct in these remarks by telling the jury he was drunk that night when, in fact, there was no substantial evidence in the record to support this assertion.

The point is forfeited because, as defendant acknowledges, there was no objection to the prosecutors remarks or request for a curative admonition. (People v. Williams (1997) 16 Cal.4th 153, 220-221 (Williams); People v. Wash (1993) 6 Cal.4th 215, 265.)

We also find no misconduct. It is settled that a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. (Williams, supra, 16 Cal.4th at p. 221, quoting People v. Wharton (1991) 53 Cal.3d 522, 567-568.) The observations of the prosecution witnesses enumerated above, coupled with defendants implied admission that he was housed at detox overnight, supported a reasonable inference that defendant had been drinking to the point of inebriation. In a trial sharply focused on credibility, the prosecutor suggested that defendant had lied about his drinking that night, and thus the jurors should be equally distrustful about his account of the incident in which he portrayed himself as an innocent victim. This was fair argument, not misconduct.

Because we find no misconduct, defendants derivative claims of ineffective assistance of counsel and error in denying his motion for new trial on that ground, are moot.

II. Admission of Old Priors

Prior to trial, the prosecutor moved in limine to admit numerous prior convictions for impeachment purposes, ranging from a 1972 conviction for possession of a stolen vehicle to a 1998 conviction for burglary. Defense counsel advocated excluding any conviction more than 20 years old, on account of remoteness. Exercising its discretion under Evidence Code section 352, the trial court ruled that defendant could be impeached with a 1992 conviction for obstruction of justice, a 1993 larceny conviction and a 1998 burglary conviction. At the conclusion of his direct examination, defendant admitted these prior felony convictions.

Before commencing her cross-examination, the prosecutor moved to admit evidence that defendant had been convicted of four additional felonies pertaining to a propensity for violence, under Evidence Code sections 1101 or 1103: sexual assault and robbery in 1973, two counts of assault in 1976, and a 1980 conviction for robbery. Stated the prosecutor: Hes alleging that our victim, Nicholas [J.], was attacking him, threw a knife at him; that [R.J.] threw a coffee cup at him, and that [R.J.] was also hitting him with a rake or something that he got from the garage and that, additionally, Louise [W.] was using a stick, or whatever it was that she was using, to hit him. So in that hes claiming self-defense, I think his priors for the crimes of violence are admissible. She also contended that defendant opened the door to admission of the priors by testifying about run-ins from police that occurred 30 years ago. Defense counsel objected on grounds of prejudice and remoteness.

The court ruled admissible defendants two assault convictions in 1976 and robbery conviction from 1980 on the grounds stated. However, the court cautioned the prosecutor that [i]f defendant admits that he was convicted of those crimes, then I expect you to move on.

Defendant then retook the stand and admitted the two convictions for assault in 1976 and robbery in 1980. The jury was given an instruction informing them that they could, but were not required to, consider evidence of these prior felonies for the limited purpose of deciding whether or not defendant has a trait of character tending to show violence.

Defendant charges abuse of discretion in allowing introduction of this bad character evidence on the grounds that (1) he never introduced evidence of the boys violent character or of his peaceful character; and (2) he did not defend against the assault with a deadly weapon (ADW) charge by claiming self-defense.

First, defendant has forfeited this point by failing to object on the grounds he now raises. (Evid. Code,  353; People v. Jackson (1996) 13 Cal.4th 1164, 1235.) Defense counsels only objections to the prosecutions motion were remoteness and prejudice. He never objected on the basis that admission of the felonies constituted inadmissible character evidence.

The argument is also unfounded, both factually and legally. Where a persons character or a trait of his character is in issue, it may be proven by any otherwise admissible evidence, including opinion evidence, reputation evidence, and evidence of specific instances of conduct. (Evid. Code,  1100.) While character evidence is generally not admissible to prove conduct on a specified occasion (id.,  1101, subd. (a)), there are exceptions to the general rule, including Evidence Code section 1103, subdivision (b), which allows the prosecution to introduce evidence of the defendants character for violence to show conduct on a specified occasion if the defense has first adduced evidence that the victim had a character or trait of character tending to show violence.

Contrary to defendants premise, character trait evidence is not limited to generic evidence that a person has a peaceful character or violent character, but includes specific instances of a persons violent conduct. (Evid. Code,  1100.) Here, defendant testified that the boys were violent toward him: They threw a knife at the car he was sitting in; they threw objects at him; they chased him down the street. Defense counsel conceded that self-defense was an issue in the case and the jurors were fully instructed on the law of self-defense. Under these circumstances, the trial court properly admitted the priors as rebuttal evidence to show violent propensity under Evidence Code section 1103. (People v. Walton (1996) 42 Cal.App.4th 1004, 1014-1015, disapproved on a different ground in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3; People v. Blanco (1992) 10 Cal.App.4th 1167, 1173-1176.)

III. Admonition Regarding Presumption of Innocence

During jury voir dire, the trial court admonished the jurors about the presumption of innocence in the following terms:

As I explained to you earlier, under our system of justice the defendant is entitled to the presumption of innocence until the prosecution proves his guilt beyond a reasonable doubt. So if I ask you to vote right now on [defendants] guilt or innocence, you would have to vote for innocence, right? Because you havent heard any evidence. Everybody understand that as you sit here right now if I said, all right, take a vote right now, you would have to vote innocent because you havent heard any evidence much less enough evidence to prove him guilty beyond a reasonable doubt. Thats what Im talking about. Keep that presumption in your mind until you go into the room to deliberate. Is there anyone who cannot or will not follow that rule of law? (Italics added.)

Although defense counsel lodged no objection at the time, defendant now argues that the italicized remarks require reversal of his convictions because they advocated a rule that unlawfully and unconstitutionally tied and limited the presumption of innocence to the evidentiary portion of the trial which ended once the jury entered the deliberation room . . . . We find no reversible error.

In reviewing any claim of instructional error, we must consider the jury instructions as a whole, and not judge a single jury instruction in artificial isolation out of the context of the charge and the entire trial record. . . . The meaning of instructions is no longer determined under a strict test of whether a reasonable juror could have understood the charge as the defendant asserts, but rather under the more tolerant test of whether there is a reasonable likelihood that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel. (People v. Dieguez (2001) 89 Cal.App.4th 266, 276 (Dieguez).)

While it is true that the presumption of innocence must be weighed along with the evidence in reaching a verdict (People v. Hill (1946) 77 Cal.App.2d 287, 293), it must be kept in mind that the courts remark about maintaining the presumption until you go into the [jury] room occurred during voir dire, before the jury had been chosen and before trial had even commenced. Defendant makes no claim that the trial judge inaccurately instructed the jury regarding the presumption of innocence during the trial itself. Further, the jury was fully and correctly instructed on the presumption at the conclusion of the trial.

Even if we presume a juror would understand the courts remark the way defendant now interprets it, under the circumstances, the courts single statement during voir dire was inconsequential and worked no miscarriage of justice. (Cal. Const., art. VI,  13.) We find no probability that the remark caused the jury to disregard or misapply the presumption of innocence.

IV. Unanimity Instruction

Defendant faults the trial courts failure to give a unanimity instruction sua sponte. He asserts the jury could have divided on which act formed the basis for both the ADW and criminal threats conviction.

In a criminal case, a jury verdict must be unanimous. [Citations.] . . . Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) We analyze defendants unanimity argument with respect to each offense separately.

A. Assault with a Deadly Weapon

Defendant postulates that the jury could have convicted him of the ADW charge based upon three separate acts: (1) Nicholass testimony that defendant swung the knife at him while yelling, Ill kill you motherfucker; (2) R.J.s testimony that defendant grabbed Nicholass shirt while holding the knife and threatened to kill Nicholas; or (3) R.J.s testimony that defendant was holding the knife in his hand at the school yard while threatening to stab them.

Defendants argument fails to persuade. First of all, (1) and (2) are not separate acts but two witnesses testimony describing the same act. Such a discrepancy in perception does not trigger a unanimity instruction. [W]here the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed . . . , the jury need not unanimously agree on the basis or, as the cases often put it, the theory whereby the defendant is guilty. (Russo, supra, 25 Cal.4th at p. 1132.)

Second, the prosecutor did not rely on more than one act to prove ADW. She made it crystal clear in her closing argument that the charge was based on defendant having swung the knife twice at Nicholas while threatening to kill him. Hence, any failure to give a unanimity instruction was harmless beyond a reasonable doubt. (People v. Brown (1996) 42 Cal.App.4th 1493, 1500, 1502; Peoplev. Deletto (1983) 147 Cal.App.3d 458, 464-474.)

B. Criminal Threats

Defendant also splices and dices the testimony of different witnesses to concoct a variety of acts that he claims could have formed the basis for his criminal threats conviction.

Under the continuous course of conduct exception no unanimity instruction is required when the acts are so closely connected that they form part of one and the same transaction, and thus one offense. (E.g., People v. Mota (1981) 115 Cal.App.3d 227, 231-234 [repeated acts of rape during one hour].) The continuous conduct rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them. (People v. Stankewitz (1990) 51 Cal.3d 72, 100; Dieguez, supra, 89 Cal.App.4th at p. 275.)

The criminal threats charge falls within this exception. Defendant made a series of utterances over the course of a few minutes, threatening to kill, stab and/or shoot the boys. All of these statements were so closely connected in time and space as to form one transaction.

Even if we were to conclude the unanimity instruction should have been given in this case, we would not find prejudice. Where the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him [or her] of any of the various offenses shown by the evidence, the failure to give the unanimity instruction is harmless. (People v. Thompson (1995) 36 Cal.App.4th 843, 853, citing People v. Jones (1990) 51 Cal.3d 294, 307.) Here, the jury was presented with two diametrically opposite versions of the same incident. Defendant testified that he acted peaceably and reasonably to an unprovoked attack by Nicholas and R.J.; he denied making any threats. The prosecution witnesses portrayed defendant as the aggressor who assaulted Nicholas with a four-inch steak knife and repeatedly threatened both boys with death or bodily harm. Because the jury was confronted with a straightforward credibility contest, we find no reasonable possibility that a unanimity instruction would have resulted in an acquittal of the charge.

V. CALCRIM No. 361

Without objection, the jury was given CALCRIM No. 361, which instructs that, if the defendant failed to explain or deny any evidence against him introduced by the prosecution which he can reasonably be expected to deny because of facts within his knowledge, the jury may take that failure into consideration in evaluating that evidence.

Defendant claims it was error to give the instruction because his testimony was complete and included explanations for all of his actions during and following the incident. We disagree.

A failure to explain or deny instruction is appropriate where the defendant tenders an explanation which, while superficially accounting for his activities, nevertheless seems bizarre or implausible. (People v. Belmontes (1988) 45 Cal.3d 744, 783-784; People v. Mask (1986) 188 Cal.App.3d 450, 455.) Defendants testimony fit this description in at least three respects.

First, defendant admitted that when he opened the car door, he grabbed Nicholas by the shirt as the boy tried to get away, ripping the shirt.^[3] Yet, according to defendant, instead of attempting to flee, the boy simply stopped in his tracks and started chasing defendant down the street. Second, defendant claimed he was the innocent victim of an assault by two young teenage boys, who attacked him without provocation. Yet when the police arrived, it was defendant who ran away, jumping a fence and dropping a knife along the way. Defendant offered no sensible explanation for why he did not engage the officer and report the boys unlawful behavior. Third, defendant failed adequately to explain why he was housed in detox if, as he claimed, he had not been drinking.

Because the jury could infer that these portions of defendants testimony were implausible and/or lacking in satisfactory explanation, CALCRIM No. 361 was proper.

Even if the instruction had been improper, it could not have been prejudicial. Error in giving this instruction is only prejudicial if it is reasonably probable a more favorable verdict would have resulted had it not been given. (People v. Saddler (1979) 24 Cal.3d 671, 683-684.) The instruction does not direct the jury to draw an adverse inference and contains other portions favorable to the defense, suggesting when it would be unreasonable to draw the inference and cautioning that the failure to deny or explain evidence does not create a presumption of guilt. (People v. Ballard (1999) 1 Cal.App.4th 752, 756 [interpreting CALJIC No. 2.62].) Accordingly, we find no reasonable likelihood of a different verdict had the instruction not been given.

VI. Failure to Instruct on Brandishing

Defendant next claims the trial court erred in failing to instruct the jury on the misdemeanor offense of brandishing a deadly weapon ( 417, subd. (a)(1)) as a lesser related alternative to the charged felony offense of ADW.

A trial court is required to instruct on any lesser included offenses that are supported by the evidence. (People v. Steele (2000) 83 Cal.App.4th 212, 217 (Steele).) However, as defendant properly acknowledges, brandishing is not a lesser included offense of ADW; it is a lesser related offense. (People v. Birch (1969) 3 Cal.App.3d 167, 176.)

Absent a stipulation of the parties or a partys failure to object to a proposed lesser related offense instruction, a trial court cannot instruct on lesser related offenses. (People v. Birks (1998) 19 Cal.4th 108, 136, fn. 19; Steele, supra, 83 Cal.App.4th at p. 217.) Thus, defendants argument that the trial court should have given the instruction sua sponte is palpably wrong.

We also reject defendants corollary claim that trial counsels failure to request the instruction demonstrates ineffective assistance of counsel. There is a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. (People v. Burnett (1999) 71 Cal.App.4th 151, 180.) Here, counsel could have decided not to request a brandishing instruction because it was inconsistent with defendants testimony that he never brandished, swung or threatened the boys with the knife, but simply picked it up off the ground and put it in his pocket. Because there is a reasonable tactical explanation for counsels omission, the claim of ineffective assistance fails.

VII. Substantial Evidence

Defendant challenges the sufficiency of the evidence to support both convictions. We take each one up individually.

A. Assault with a Deadly Weapon

Defendant claims there is no substantial evidence to support the ADW conviction because the evidence shows, at most, that he brandished the knife, not that he assaulted anyone with it. He is wrong again.

In assessing a claim of insufficiency of evidence, the reviewing courts task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence‑‑that is, evidence that is reasonable, credible, and of solid value‑‑such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919, 933.)

Nicholas testified that after grabbing his shirt and ripping it, defendant reached into his back pocket, pulled out a knife with a four- or five-inch blade and swung it twice with a crossing motion from a distance of two to three feet, while yelling Ill kill you motherfucker.

An assault occurs whenever [t]he next movement would, at least to all appearance, complete the battery. [Citation.] Thus, assault lies on a definitional . . . continuum of conduct that describes its essential relation to battery: An assault is an incipient or inchoate battery; a battery is a consummated assault. (People v. Chance (2008) 44 Cal.4th 1164, 1170.)

A reasonable jury could easily conclude that defendants conduct in swinging a long steak knife at Nicholas from relatively close range while threatening to kill him was sufficient evidence to constitute assault with a deadly weapon.

B. Criminal Threats

While not denying the testimony elicited by the prosecution witnesses that he threatened to stab, kill and shoot his victims, defendant nevertheless argues that his conviction for making criminal threats lacks evidentiary support because these words were uttered in lawful self-defense. The claim is frivolous.

Defendants argument is obviously based on his own testimony. But the test is whether there is substantial evidence, contradicted or not, to support the jurys verdict. Defendants claim thus turns the standard of review on its head. Moreover, the doctrine of self-defense comes into play where an individual reasonably believes he or she is in imminent danger of suffering bodily injury or being touched unlawfully and thus reasonably believed that the immediate use of force was necessary to defend against that danger. (CALCRIM No. 3470,  2., italics added.) However, the offense of uttering criminal threats does not entail the use of force, only words. Defendant cites no authority that one can successfully defend a charge of making criminal threats by claiming self-defense.

VIII. Instructional Error

Defendant contends that the trial court erred in failing, sua sponte, to instruct the jury that in order for him to be guilty of the criminal threats charge, there had to be a union of act and intent ( 20) and that the threats not be uttered in lawful self-defense.

The argument is forfeited. A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language. (People v. Sully (1991) 53 Cal.3d 1195, 1218, quoting People v. Lang (1989) 49 Cal.3d 991, 1024.)

Nor was counsel ineffective for failing to request the supplementary language defendant conjures. As noted, defendant cites no authority that a defendant may successfully raise self-defense to a charge of making criminal threats in violation of section 422. Further, the jury was given CALCRIM No. 252, which told them every charged crime required proof of the union of act and criminal intent.

IX. Cumulative Prejudice

Since our review of the record has disclosed no error warranting reversal, whether considered separately or cumulatively, we also reject defendants claim of cumulative prejudice. (People v. Roybal (1998) 19 Cal.4th 481, 531.)

X. Truth of the Strike Priors

Defendant contends the evidence was insufficient to show his four felony convictions, all of which occurred in the state of New Jersey, constituted strikes or prior serious felonies for purposes of enhancement under section 667, subdivision (a)(1).

Penal Code section 667, subdivision (a)(1) provides for a sentence enhancement for each prior conviction for any offense committed in another jurisdiction which includes all of the elements of any serious felony under California law. Under the Three Strikes law, a prior conviction from another jurisdiction constitutes a strike if it is for an offense that includes all of the elements of the particular felony as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7. (Pen. Code,  667, subd. (d)(2), 1170.12, subd. (b)(2).) Thus, the prior foreign conviction must involve conduct that would qualify as a serious [or violent] felony in California. (People v. Avery (2002) 27 Cal.4th 49, 53.) To make this determination, the court may consider the entire record of the prior conviction as well as the elements of the crime. (Ibid.) If the record insufficiently reveals the facts of the prior offense, the court must presume the prior conviction was for the least offense punishable under the foreign law. (People v. Jenkins (2006) 140 Cal.App.4th 805, 810 (Jenkins).)

A. The 1980 Robbery

Citing People v. Nguyen (2000) 24 Cal.4th 756, 763 (Nguyen), defendant contends his 1980 conviction for first degree robbery did not qualify as a serious felony in California because New Jerseys robbery statute contains a more expansive definition of the crime than Californias. Without challenging that premise, the Attorney General claims the prior was proven because the robbery was of the firstdegree, which included several acts which could have qualified as strikes. Defendant has the better argument.

In 1979, New Jersey adopted the Model Penal Code definition of robbery. New Jersey Statutes Annotated section 2C:15-1 provides:

a. Robbery defined. A person is guilty of robbery if, in the course of committing a theft, he:

(1) Inflicts bodily injury or uses force upon another; or

(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or

(3) Commits or threatens immediately to commit any crime of the first or second degree.

An act shall be deemed to be included in the phrase in the course of committing a theft if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission.

b. Grading. Robbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon. (Italics added.) (N.J. Laws 1979, ch. 178,  28, eff. Sept. 1, 1979; amended by N.J. Laws 1981, ch. 22,  1, eff. Feb. 6, 1981.)^[4]

As the California Supreme Court noted in Nguyen, the New Jersey statute represented a clean break with the past, broadening the common law definition of the crime, including abolition of the requirement that the victim own or possess the stolen property. (Nguyen, supra, 24 Cal.4th at pp. 763-764, quoting State v. Mirault (N.J. 1983) 457 A.2d 455, 457 (Mirault).) On the other hand, California has not adopted the Model Penal Code definition of robbery. Section 211 reflects, instead, the traditional approach that limits victims of robbery to those persons in either actual or constructive possession of the property taken. (Nguyen, at p. 764.)

There is a second major difference. Penal Code section 211 requires not only gaining possession of the victims property but asporting or carrying away the loot. (People v. Cooper (1991) 53 Cal.3d 1158, 1165.) New Jersey Statutes Annotated section 2C:15-1 eliminated the element of asportation. (State v. Farrad (N.J. 2000) 753 A.2d 648, 654.)

The documents submitted by the prosecution did not establish that the victim owned or controlled the property that was stolen, or that defendant carried away the loot.

The Attorney Generals argument that defendants conviction of firstdegree robbery suggests he may have committed additional acts that qualified as serious felonies (N.J. Stat. Ann.  2C:15‑1, subd. (b), quoted ante), is unpersuasive. The information alleged only that defendant was on July 14, 1980, . . . convicted of the crime of robbery, a serious felony, within the meaning of section 667[, subdivision] (a) of the Penal Code. (Italics added.) No claim was made in the trial court that the robbery qualified as a different serious felony in California. Accordingly, the true finding as to the 1980 prior must be reversed.^[5]

B. 1976 Atrocious Assault

The prosecution introduced evidence that in 1976 defendant pleaded guilty and was convicted in a New Jersey court of atrocious assault and battery. The indictment for this count alleges that on December 22, 1975, defendant did commit an atrocious assault and battery by maiming and wounding Julian Perez.^[6] The prosecutor successfully argued that this conviction was substantially equivalent to battery with serious bodily injury within the meaning of Penal Code section 243, subdivision (d). That subdivision provides that [w]hen a battery is committed against any person and serious bodily injury is inflicted on the person, the battery is punishable by incarceration in the county jail or in state prison. (Italics added.) Serious bodily injury is defined in section 243, subdivision (f)(4) as a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement. (Italics added.) Injury is defined in subdivision (f)(5) as any physical injury which requires professional medical treatment.

We disagree that the New Jersey atrocious assault conviction met all the elements of the California offense of battery with serious bodily injury. First, the bar for committing atrocious assault in New Jersey is significantly lower than that for felony battery in California. The term serious bodily injury in Californias Penal Code section 243 is defined strictly in terms of the severity of the injury sustained. The injury must at least be one that requires professional medical treatment and it must result in serious impairment of a victims physical condition.

On the other hand, in New Jersey the severity of the injury is only one factor to be taken into account, in conjunction with the character of the assault made, in determining whether there is sufficient evidence to support an atrocious assault conviction. (State v. Edwards (N.J. 1958) 146 A.2d 209, 211-212 (Edwards).)

Thus, in Crumedy I, supra, 364 A.2d 546 the defendant, posing as a physician, inserted needles into the arms of three victims under the false pretense of taking blood samples for a medical diagnosis. The Superior Court of New Jersey, Appellate Division, rejected his contention that the facts do not spell out the requisite elements of the crime of atrocious assault and battery, but rather rise no higher than the . . . offense of simple assault and battery. (364 A.2d at p. 548.) The court held that the severity of the injury was merely one factor to be considered in determining whether defendant was guilty of the crime. The court found that the outrageous character of defendants acts . . . underlined by the cruel advantage taken by him of individuals who may not have had the education or sophistication to repulse his advances, was sufficient to warrant a conviction for atrocious assault. (Id. at p. 549, italics added.) Crumedy I was affirmed by the New Jersey Supreme Court on a tie vote. (State v. Crumedy (N.J. 1978) 387 A.2d 357, 358 (Crumedy II).) As Justice Pashmans concurring opinion explained, the crime of atrocious assault depends on a consideration of multiple factors, which stand in an inverse relationship‑‑the more heinous the assaultive act, the less substantial must the injuries be to support a conclusion that the requisite element of viciousness exists. Similarly, less outrageous conduct may nevertheless constitute an atrocious assault and battery where the ensuing injuries are significant. (Crumedy II, at p. 358.)

Under no circumstances could the defendant in Crumedy have been convicted of battery with serious bodily injury in California. There was no evidence that any of the victims even required medical attention, much less that they sustained serious physical impairment.^[7]

Nor could the atrocious assault conviction have qualified as a strike under section 1192.7, subdivision (c)(8), which stipulates that a serious felony is any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice.

The indictment for atrocious assault names both defendant and a codefendant. However, in order to qualify as a strike, defendant must have personally inflict[ed] great bodily injury. This element requires that a defendant must actually and directly perform the act that causes the physical injury. (People v. Cole (1982) 31 Cal.3d 568, 572, 579.) The injury-producing act must be done by the defendant himself, and not by someone who merely aided or abetted the actor directly inflicting the injury. (Id. at p. 572; see also id. at p. 575, fn. 4.) The prosecution adduced no evidence indicating that defendant, rather than his confederate, personally inflicted great bodily injury. While the court may look to the entire record of the conviction to determine the substance of the prior foreign conviction, when the record does not disclose any of the facts of the offense actually committed, the court will presume that the prior conviction was for the least offense punishable under the foreign law. (People v. Guerrero (1988) 44 Cal.3d 343, 354-355 (Guerrero).) The strike finding as to defendants 1976 atrocious assault conviction must be reversed. (But see fn. 5, ante.)

C. Two 1973 Convictions

Failure to allow live testimony

The prosecution introduced certified records showing that in 1973, defendant was convicted of rape while armed, and armed robbery in a New Jersey criminal court. Defense counsel responded that his client informed him that the guilty pleas for those convictions had been overturned. However, counsel admitted he could not find any records supporting this assertion. The prosecutor noted that she had asked the State of New Jersey for any and all documentation that they had for Larry Robinson, and the custodian of records had produced nothing to suggest the convictions had been overturned or invalidated.

The court rejected defense counsels argument that reversal could be inferred from the fact that defendant apparently had not served his full sentence, since he was pick[ed] up on another offense in December 1975. Observing that it was not uncommon at that time for defendants serving indeterminate terms to be released on parole after serving only a portion of their sentences, the court found the 1973 strike prior to be true. The court indicated that if documentation could be found that the convictions had been vacated, appellate counsel could raise the issue in the Court of Appeal.

Defendant argues that he was denied his state and federal constitutional rights by the courts failure to let him testify that his 1973 convictions had been overturned, claiming that his assertion was supported by circumstantial evidence.

Defendants claim has been forfeited, since no request was made in the trial court to allow him to testify. (People v. Saunders (1993) 5 Cal.4th 580, 589-590.) Defendants constitutional argument is equally noncognizable, for failure to raise it below. (People v. Benson (1990) 52 Cal.3d 754, 788.)

In any event, defendants argument is contrary to controlling law. In a proceeding to determine whether a conviction constitutes a serious felony or strike prior, neither the prosecution nor the defense may present live testimony. The trier of fact must rely strictly on court records in making this determination. (Guerrero, supra, 44 Cal.3d at p. 355; People v. Bartow (1996) 46 Cal.App.4th 1573, 1581.)

1. 1973 conviction‑‑rape while armed.

Defendant claims that his 1973 conviction of Rape While Armed did not qualify as a strike because the New Jersey and California rape statutes define different crimes.

At the time, New Jersey Statutes Annotated former section 2A:138-1 provided: Any person who has carnal knowledge of a woman forcibly against her will, or while she is under the influence of any narcotic drug, or who, being of the age of 16 or over, unlawfully and carnally abuses a woman-child under the age of 12 years, with or without her consent, is guilty of a high misdemeanor and shall be punished by a fine of not more than $5,000, or by imprisonment for not more than 30 years, or both; or who, being of the age of 16 or over, unlawfully and carnally abuses a woman-child of the age of 12 years or over, but under the age of 16 years, with or without her consent, is guilty of a high misdemeanor and shall be punished by a fine of not more than $5,000, or by imprisonment for not more than 15 years, or both. (State v. Thompson (N.J. Super. Ct. Law Div. 1978) 392 A.2d 678, 679-680.)

The indictment, which may be used to establish the truth of the priors (People v. Hayes (1992) 6 Cal.App.4th 616, 624), alleged that defendant had carnal knowledge of [the female victim] forcibly against her will. New Jersey has interpreted carnal knowledge to mean that there be forcible sexual penetration by the sex organ of the male into the sex organ of a female without her free and conscious consent. (State v. Smith (N.J. Super. Ct. Law Div. 1977) 372 A.2d 386, 388-389, affd. (N.J.Super.Ct.App.Div. 1979) 404 A.2d 331, reversed on different grounds in State v. Smith (N.J. 1981) 426 A.2d 38, 45.)

Rape is an enumerated serious felony under the three strikes law. ( 1192.7, subd. (c)(3).) Rape is an act of sexual intercourse accomplished against the will of a nonspouse victim by means of force, violence, duress or threat of bodily injury. ( 261, subd. (a)(2).) This definition is substantially equivalent to New Jerseys forcible carnal knowledge definition under New Jersey Statutes Annotated former section 2A:138‑1.

Defendant also points out that section 261 requires that the victim not be the spouse of the perpetrator, while the New Jersey statute has no such element. The observation proves nothing. Spousal rape is also a felony in California ( 262) and section 1192.7, subdivision (c)(3) encompasses rape of any kind. (See People v. Myers (1993) 5 Cal.4th 1193, 1200 [crimes specified in section 1192.7, subdivision (c) must be construed as referring not to specific criminal offenses, but to the criminal conduct described therein]; People v. Jackson (1985) 37 Cal.3d 826, 832.)

Finally, the judgment record showing that defendant was guilty of rape while armed, its characterization as a first degree sexual assault and the language of the indictment using the term carnal knowledge rather than carnal abuse, allowed the trial court to determine that the rape conviction was not based on sexual molestation of a minor.^[8] The record need only contain evidence from which the trier of fact can reasonably presume the conviction included all of the required elements. (People v. Riel (2000) 22 Cal.4th 1153, 1205-1206; People v. Johnson (1989) 208 Cal.App.3d 19, 24.)

2. 1973 conviction‑‑robbery.

Defendant was convicted of robbery in 1973, before New Jersey adopted the broad, Model Penal Code definition of robbery. In 1973, robbery was defined in New Jersey as taking a persons property by violence or putting him in fear. (Mirault, supra, 457 A.2d at p. 458, quoting N.J. Stat. Ann. former  2A:141‑1 [repealed in 1979].) Californias section 211 defines robbery as taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. These two statutes define essentially identical crimes.

Defendant finds a material distinction because New Jersey contains no requirement that the property be taken against the will of the victim. He hypothesizes that one could be guilty of robbery in New Jersey that would only constitute extortion in California, since extortion is a theft with the consent of the victim.^[9] However, the indictment alleges that defendant being armed with and having in his possession a certain firearm, to wit, a revolver, then and there did unlawfully, forcibly and feloniously take from the person of [the victim] money . . .  and that this act was against the will of [the victim] by violence or putting her . . . in fear. (Italics added.) This language established that the robbery was a forcible, nonconsensual taking of the victims property.

Defendant also points out that New Jersey requires a reasonable apprehension that force will be used, whereas California requires the actual use of force or fear. We do not see how this observation helps him. Before 1978, New Jersey law provided that [t]o constitute robbery there must be actual violence, or such a demonstration or threats as will create reasonable apprehension of bodily injury if the victim resists. (State v. McDonald (1916) 89 N.J.L. 421, 422, italics added.) However, to commit robbery in California the defendant need only place the victim in actual fear, regardless of whether it is reasonable. This means New Jerseys robbery statute contained a more rigorous fear element than that of California. It follows that if defendant induced fear under the New Jersey statute, he certainly satisfied the fear element of section 211.

XI. Section 654

Defendant contends his conviction for making criminal threats should be stayed pursuant to section 654 because the threat and the assault were part of one continuous transaction, regardless of which threat the jury relied on in convicting defendant of violating section 422. We disagree.

Section 654 provides in part: 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. ( 654, subd. (a).) [S]ection 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. (People v. Perez (1979) 23 Cal.3d 545, 551.)

If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. (People v. Perez, supra, 23 Cal.3d at p. 551.) On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.)

By imposing concurrent sentences on the criminal threat and the assault with a deadly weapon counts, the trial court impliedly found that defendant had separate objectives. We review the finding under the substantial evidence test (People v. Goodall (1982) 131 Cal.App.3d 129, 147-148), viewing the evidence in a light most favorable to the People and presuming the existence of every fact the trier could reasonably deduce therefrom (People v. Holly (1976) 62 Cal.App.3d 797, 803).

Applying this standard, we cannot disturb the courts finding. The court could reasonably conclude that defendants intent in swinging the knife at Nicholas was to inflict injury, whereas his intent in uttering murderous threats was to frighten and intimidate. No error appears on this point.

DISPOSITION

We reverse the trial courts findings that defendants two New Jersey convictions for 1980 robbery and 1976 atrocious assault and battery constituted strikes. We remand to the trial court to provide the People the option to retry these strike allegations. (People v. Rodriguez (1999) 69 Cal.App.4th 341, 352-353.) In all other respects the judgment is affirmed. If one or both of the reversed strike allegations is not retried or is found not true, the trial court shall resentence defendant accordingly.

BUTZ , J.

We concur:

SIMS , Acting P. J.

DAVIS , J.

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^[1] Undesignated statutory references are to the California Penal Code. We also examine defendants prior convictions in New Jersey.

^[2] Nicholas testified that he threw the cup at the car. R.J. first testified that he dropped the cup, but later said he threw the cup.

^[3] It was undisputed that defendant grabbed Nicholas with such force that he inflicted red scratches or bruise marks on his shoulder and arm.

^[4] The 1981 amendment added the words or uses force, in subdivision (a)(1), a minor change that does not affect the issue before us. (Historical and Statutory Notes, Wests N.J. Stat. Ann. foll.  2C:15-1.)

^[5] The People may retry the truth of this charge upon securing further evidence establishing that the 1980 robbery qualified as a serious felony within the meaning of section 211. (Jenkins, supra, 140 Cal.App.4th at p. 816.)

^[6] At the time, New Jersey Statutes Annotated former section 2A:90‑1 provided: Any person who commits an atrocious assault and battery by maiming or wounding another is guilty of a high misdemeanor. (State v. Crumedy (N.J.Super.Ct.App.Div. 1976) 364 A.2d 546, 548 (Crumedy I).)

^[7] The Attorney General discounts Crumedy I on the ground that it was decided after defendant was convicted and represented a significant change in the law. Not so. Nothing in Crumedy I or in the New Jersey Supreme Courts affirmance of it (Crumedy II) disavows the traditional standard set forth in Edwards, supra, 146 A.2d at pages 211-212.

^[8] The terms forcibly, against [the] will, and while armed, also rule out the possibility that defendant was convicted under that portion of New Jersey Statutes Annotated former section 2A:138-1 describing intercourse while the victim is under the influence of any narcotic drug, a crime which is analogous, but not identical, to Californias section 261, subdivision (a)(3).