P. v.
Filed 9/18/13 P. v. Moore CA4/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
THE PEOPLE,
Plaintiff and Respondent,
v.
DALE BRUCE MOORE,
Defendant and Appellant.
E056081
(Super.Ct.No. RIF10003079)
OPINION
APPEAL from the Superior Court of
County. Helios J.
Hernandez, Judge. Affirmed.
Catherine
White, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, James D. Dutton and
Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
and appellant Dale Bruce Moore appeals after he was found guilty by a jury of
two charges of failing to register as a sex offender. At a bifurcated
proceeding, he admitted allegations that he had been convicted of strike
priors and had suffered prior prison terms.
He now complains that his sentence was improper because the evidence was
insufficient to establish the elements of the
the trial court. We affirm.
FACTS AND PROCEDURAL HISTORY
As of
1985, defendant was required by certain convictions to register as a sex
offender within the State of California. By May 2003, defendant was living in a
transient camp under a bridge in the riverbed of the Santa Ana River. Many transients lived along the riverbed near
the encampment where defendant was staying.
Part of the riverbed fell into the jurisdiction of the City of Jurupa
Valley, while part was within the jurisdiction of the City of Riverside. Some of the transients in the camp registered
at the Jurupa Valley police station. Defendant had always registered in Riverside County, and had never registered
in Jurupa Valley. However, defendant had registered regularly;
he updated his registration 17 times altogether, and had registered in Riverside County nine times. He had registered in the City of Riverside seven times.
In Riverside County, registered sex offenders
were also given and required to wear a global positioning system (GPS) tracking
device. The purpose of the tracking
device was to ensure that a registered sex offender did not come within 2,000
feet of a school or park. In defendant’s
case, his tracking device was attached to his ankle. It was not removable, and had to be recharged
twice a day.
In
2009, defendant registered in Riverside. Later that year, he violated his parole and
spent a period of time incarcerated.
When defendant was released, on January 10,
2010,
he reported to his parole officer. The
parole officer informed defendant once more of the registration requirements,
including the requirement to register within five days of his release on
parole. Defendant told his parole
officer that he was registering in an unincorporated area of Riverside and staying at the Santa Ana riverbed. Defendant was again fitted with a GPS
tracking device on his ankle, and told about the regulations for wearing and
recharging the device. Because defendant
was not living where there was a ready source of electricity, he could recharge
his device at the local police station.
Defendant
made two appointments with the registration department in Riverside, for
January 13 and January 15, 2010, but he failed to keep either appointment. Defendant’s parole officer attempted to get
into contact with defendant, including sending signals to defendant’s GPS
tracking device. The signals would cause
the device to vibrate, which required the wearer to immediately get in touch
with his parole agent. Defendant did not
respond to the signals, however, and did not otherwise contact his parole
agent. Instead, the parole agent
received a notification that the tracking device was no longer charged. The last tracking information on defendant’s
device showed that defendant had been in the riverbed area.
At
the time, January 19, 2010, it had been raining heavily, so defendant’s parole
agent allowed some leeway, expecting defendant to keep his regular parole
appointment on January 20. Defendant did
not appear for his appointment, however, and a warrant was issued for his
arrest. The parole agent went to the
riverbed area to look for defendant but was unable to find him. Defendant never reported to his parole agent
thereafter.
About
two months later, in March 2010, a different parole agent saw defendant riding
a bicycle in Rubidoux. He left a message
for defendant’s parole agent, advising him that he had seen defendant in the
community. When the second agent learned
of the arrest warrant for defendant, he went back to try to locate defendant
but was unsuccessful. A week later, the
second agent again saw defendant riding a bicycle in the area, but traffic
impeded his efforts to make contact with defendant. A few days later, a deputy sheriff responded
to a call about transients in the parking lot of a shopping center; the parking
lot was about one-quarter to one-half mile from the Santa Ana riverbed. The deputy found defendant rummaging through
trash bins. Defendant gave a false name
and birth date, and said he had no identification. A records check returned no person with the
name and birth date defendant had given.
Defendant insisted that the false name was his name, and denied having a
criminal record. He also said that his
girlfriend had his identification cards, but he could not name his
girlfriend. A search of defendant’s
backpack turned up a check cashing card in defendant’s true name; this time,
the record check ran by dispatch returned the information that defendant was
subject to an arrest warrant. Defendant
was taken into custody and his true identity verified.
In
September 2010, the Riverside County District Attorney filed an information
alleging one count of failure to register as a sex offender (count 1), one
count of failing to register upon release from incarceration (count 2), and one
count of grand theft (cutting off and disposing of state property, i.e., the
GPS ankle device) (count 3). The information
also alleged six prison term prior offenses (2003 conviction of assault with a
deadly weapon, 1996 conviction of theft with a prior, 1993 conviction of felony
recklessly evading a police officer, 1990 conviction of possession of a
controlled substance, 1987 conviction of burglary, and 1978 conviction of
kidnapping), and four strike priors (2003 conviction of assault with a deadly
weapon, 1987 conviction of burglary, 1978 conviction of kidnapping, and 1978
conviction of rape).
In
January 2011, defendant moved to represent himself; the trial court granted
this motion. The trial court heard and
denied defendant’s motion to dismiss the information in April 2011. By August 2011, defendant decided that the
case was more complex than he had initially realized, and he requested
appointed counsel. The court appointed
the public defender to represent him.
Defense
counsel asked the trial court to dismiss the strike prior allegations in this
case. The court declined to do so, but
its ruling was without prejudice to reconsidering the matter later.
The
matter proceeded to jury trial. Before
opening statements, the People dismissed the grand theft charge in the
defendant of both failure-to-register charges.
Defendant requested a court trial on the prior offense allegations, and
the jury was excused. The People
presented exhibit evidence of defendant’s prior convictions. The minutes record that the court admitted
the documents into evidence. Defendant
then admitted all six prison term prior offenses and all four strike
priors.
At
the sentencing hearing, defense counsel made an oral request for the court to
exercise its discretion under People v.
Superior Court (Romero) (1996) 13
Cal.4th 497, to dismiss one or more of defendant’s strike priors. The court declined to dismiss any of the
strike priors. The court imposed an
indeterminate sentence of 25 years to life on count 1, and imposed an additional
sentence of 25 years to life on count 2, but stayed that term under Penal Code
section 654. The court imposed six
one-year terms on the six prison term prior enhancements, to run consecutively
to the sentence on count 1.
Defendant
filed a timely notice of appeal.
ANALYSIS
I. Contentions and Standard of Review
Defendant
contends that the trial record below does not show that the court admitted the
documentary papers concerning his prior offenses into evidence. That is, although the clerk’s minutes note
that the documentary exhibits were admitted into evidence, the reporter’s
transcript of the proceedings does not show either that the
People requested that the documents be admitted or
that the trial court made any such ruling.
The reporter’s transcript indicates, rather, that the court may have
treated defendant’s admissions of the prior convictions as a substitute for
documentary proof. Most especially,
defendant points out that the court considered the record of defendant’s
out-of-state convictions (rape and kidnapping) to be rather “sparse,†failing
to indicate precisely what Washington state statutes were involved, and how
they were shown to be the equivalent of California qualifying strike offenses. Defendant urges that the record fails to show
that any amplification of the record was made to satisfy the court’s
reservations about the out-of-state convictions.
Under
these circumstances, defendant contends, first, that his “bare admission†of
the prior offenses was insufficient to prove the prior offense allegations
because the supporting documents were not admitted into evidence, and, second,
even if the trial court did admit and consider the documents, the evidence was
still insufficient to support all the prior allegations.
Defendant’s
contentions are claims of insufficiency of the evidence. The claim of insufficiency of the evidence to
support an enhancement is the same as in other contexts: “[W]e review the entire record in the light most
favorable to the judgment to determine whether it contains substantial
evidence—that is, evidence that is reasonable, credible, and of solid
value—from which a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt. [Citation.] We presume every fact in support of the
judgment the trier of fact could have reasonably deduced from the
evidence. [Citation.] If the circumstances reasonably justify the
trier of fact’s findings, reversal of the judgment is not warranted simply because
the circumstances might also reasonably be reconciled with a contrary
finding. [Citation.] ‘A reviewing court neither reweighs evidence
nor reevaluates a witness’s credibility.’
[Citation.]†(
59-60.)
II. Proof of Sentence Enhancements
As a
matter of due process, the People must prove each element of a sentence
enhancement beyond a reasonable doubt. (
566.) Some prior convictions under a
specified statute necessarily qualify as a serious felony. Where, however, the fact itself of the
conviction does not show that the conviction constituted a serious felony
conviction, other admissible evidence from the entire record of the conviction
may be considered, in order to resolve the issue. (People
v. Miles (2008) 43 Cal.4th 1074, 1082 (Miles).) “This rule applies equally to California
convictions and to those from foreign jurisdictions.†(Ibid.) Such evidence may include certified documents
from the Penal Code section 969b packet.
“A court document, prepared contemporaneously with the conviction, as
part of the record thereof, by a public officer charged with that duty, and
describing the nature of the prior conviction for official purposes, is
relevant and admissible on this issue.â€
(Miles, supra, 43 Cal.4th 1074, 1082.)
If, however, “the prior conviction was for an offense that can be
committed in multiple ways, and the record of the conviction does not disclose
how the offense was committed, a court must presume the conviction was for the
least serious form of the offense.†(
of the prior conviction depends upon the particular conduct that gave rise to
the conviction, the record is insufficient to establish that a serious felony
conviction occurred. [¶] (4) On
the other hand, the trier of fact may draw reasonable
inferences from the record presented.
Absent rebuttal evidence, the trier of fact may presume that an official
government document, prepared contemporaneously as part of the judgment record
and describing the prior conviction, is truthful and accurate. Unless rebutted, such a document, standing
alone, is sufficient evidence of the facts it recites about the nature and
circumstances of the prior conviction.â€
(Ibid.)
Inquiry
into the facts underlying a prior conviction, to determine whether or not the
guilty plea admitted the elements of a serious or violent offense “is limited
to the terms of the charging document, to the terms of the plea agreement
. . . or to some comparable judicial record of this
information.†(Shepard v. United States (2005) 544 U.S. 13, 26 [128 S.Ct. 1254,
161 L.Ed.2d 205].) In California, the nature of the prior
conviction may be established from the charging documents, the court’s minutes,
and the plea form, which are official records admissible to establish the
foundational facts of the prior conviction.
(See, e.g., People v. Henley (1999)
72 Cal.App.4th 555, 560.)
III. The Documentary Proof of the Convictions
Was Properly Considered as
Evidence by the Court
We
reject defendant’s contention that the documentary evidence contained in the
record cannot be considered, on the alleged ground that there was no express
statement that the documents had been admitted into evidence.
After
taking the verdicts and dismissing the jurors, the court took up the matter of
trial on the priors. The court asked the
prosecutor, “Do you have your [Pen. Code, § 969b] package?†The prosecutor had inadvertently left the
documents at her office. The court took
a short recess to allow them to be retrieved.
When proceedings reconvened, the court announced the appearances of the
parties for the record, and noted, “I just need to glance over the [Pen. Code,
§ 969b] package. [¶] Again, everybody. I’ve had a quick glance and looked at
it. Everything seems to be in
order.â€
The
packet, consisting of Exhibits 6 through 15, included documents for each of
defendant’s prior offense convictions.
The packet documents for Exhibits 6 through 13 are included in the
clerk’s transcript and the supplemental clerk’s transcript on appeal; the
clerk’s label on each of these exhibits is marked showing both that the
exhibits were marked for identification, and that they were admitted into
evidence. Although defendant complains
that the reporter’s transcript does not show explicitly that the documents were
admitted into evidence, neither does it show, for example, that they were
marked for identification. The pause in
the proceedings would, however, account for the failure to record the
identification and admission of the documents into evidence. The markings on each exhibit in the record
clearly indicate that both procedures were performed. There could be no doubt that the prosecutor
proffered the documents as evidence, with the intent that the court would
review and rely on them, as, in fact, the court did. Generally, “[i]t is presumed that official
duty has been regularly performed.â€
(Evid. Code, § 664.) In
accordance with this principle, we conclude that the exhibits were admitted
into evidence and properly considered by the trial court.
IV. The Evidence Was Sufficient to Show that
Defendant Had at Least Two Prior Strike Convictions
Defendant’s
conviction in 2003 for assault with a deadly weapon qualified as a strike
prior. Penal Code section 1192.7,
subdivision (c)(31), lists “assault with a deadly weapon . . . in
violation of Section 245,†as a serious (strike) felony. When defendant admitted his priors in the
instant case, the trial court stated:
“And then there’s your strikes.
The first one is September 24th, 2003, a violation of 245(a)(1), assault
with a deadly weapon. And do you admit -
- and you were convicted. Do you admit
or deny?†Defendant stated: “Admit.â€
Penal
Code section 245, subdivisions (a)(1) and (a)(4), provide that it is a felony
to “commit[] 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.†It therefore
provides two distinct means of violating the provision: either
committing an assault with a deadly weapon other than a firearm,
force likely to produce great bodily injury.
As already noted, Penal Code section 1192.7, subdivision (c)(31),
defines “assault with a deadly weapon†as a serious (strike) felony, but
committing an assault by any force likely to produce great bodily injury (which
might, e.g., be accomplished without the use of a weapon) does not qualify as a
strike.
Defendant
argues that neither Penal Code section 1192.7 (serious felony strikes) nor
Penal Code section 667.5 (violent felony strikes) “separately lists†the crime
of “assault with a deadly weapon other than a firearm†as a qualifying strike
offense. Defendant argues that the only
way to bring the offense within the definition of a
strike offense is proof that the offender personally
used a dangerous or deadly weapon. (Pen.
Code, § 1192.7, subd. (c)(23).) A
defendant may be convicted of assault with a deadly weapon, other than a
firearm, either by personally using the weapon, or as an aider and
abettor. (See People v. Williams (1990) 222 Cal.App.3d 911, 914-915.) When defendant admitted his conviction of
assault with a deadly weapon under Penal Code section 245, subdivision (a)(1),
he did not admit personal use of the weapon, nor did he admit the nature of the
conviction as either a serious or violent felony. Defendant therefore urges that his admission
alone did not provide sufficient proof that the prior conviction was a
strike.
On
March 7, 2000, the electorate adopted Proposition 21 (Ballot Pamp., Primary
Elect. (Mar. 7, 2000), text of Prop. 21, § 17, pp. 124-125), which deleted
personal use as a necessary criterion to establish that an assault with a
deadly weapon or firearm was a serious felony (strike). (See People
v. Luna (2003) 113 Cal.App.4th 395, 398 (Luna).) Penal Code section
1192.7, subdivision (c)(31), now provides that any “assault with a deadly
weapon [or] firearm . . . in violation of Section 245†is a serious
felony (strike), without regard to whether the conviction was as a perpetrator
or as an aider and abettor.
Defendant
urges this court to reject Luna on
the ground that it partially renders other subdivisions of Penal Code section
1192.7 surplusage.
name="_ftnref1" title="">[1] (See, e.g., Pen. Code, § 1192.7, subds.
(c)(11) [assault with a deadly weapon on a peace officer], (c)(13) [assault
with a deadly weapon by an inmate], (c)(32) [assault with a deadly weapon
against a public transit employee].)
However, Luna follows the
plain meaning of subdivision (c)(31).
That Penal Code section 1192.7, subdivision (c)(31), may have some
overlap with other subdivisions is no reason to disregard its plain language.
In
notation on the abstract of judgment, “245(A)(1)†as “Asslt w DWpn†was
sufficient to support a finding that the conviction was a serious felony. (Id.
at p. 1065.) That is, the notation on
the abstract of judgment was a “contemporaneous, statutorily sanctioned,
officially prepared clerical record
of the conviction and sentence,†and as such was sufficient to show that the
conviction proceeded under the deadly weapon prong of Penal Code section 245,
subdivision (a)(1), and not the great bodily injury prong. The presumption of regularity in the clerk’s
recording of this description of the offense on the abstract of judgment,
unrebutted by any contrary evidence, allowed the trier of fact to conclude
beyond a reasonable doubt that the conviction for assault with a deadly weapon
was a serious felony conviction. (
The
abstract of judgment for defendant’s 2003 assault with a deadly weapon
conviction indicated that he had been convicted of “245(A)(1),†described as
“Assault
w/ weapon.†The
abstract identified only one of the two prongs as the applicable ground for
defendant’s conviction, and it so identified the prong that meets the
definition of a serious felony (strike).
In addition, the record contains defendant’s plea form for this offense,
on which defendant was expressly advised, “This will count as a ‘strike’ in any
future cases.†These records, properly
considered by the trial court below, together with the presumption that duty
was properly performed, support the inference that defendant was convicted of a
qualifying strike prior with respect to his 2003 assault with a deadly weapon
conviction.
Defendant’s
1987 conviction for first degree burglary also qualified as a strike. Penal Code section 1192.7, subdivision
(c)(18), provides that any conviction of burglary in the first degree is a
serious felony. The court asked
defendant about his “[s]econd strike,†of “November 9th, 1987, County of
Riverside, burglary—that would be burglary in the first degree, as a felony and
as a strike. Do you admit or deny
that?†Defendant stated, “Admit.†Defendant’s oral admission on the record
included the admission that the burglary was of the first degree. The record contains two abstracts of judgment
relating to this 1987 burglary conviction, including notations that the offense
is “BURGLARY 1st deg†or “BURGLARY, 1st deg inhabited bldg.†The evidence in the record was clearly
sufficient to sustain the trial court’s determination that the 1987 burglary
conviction was a strike prior. (See
546, 554 [Trial court may consider the entire record on the prior conviction to
determine whether it satisfies the elements of a serious felony.].)
Defendant’s
remaining alleged strike priors were for convictions in the State of Washington
in 1978, for first degree rape and first degree kidnapping. At the time of taking the admissions, the
court inquired of defendant: “Third
strike. That is November 20th, 1978,
State of Washington, County of Spokane, convicted of kidnapping, which in
California code would be 207. . . . And that was a felony. To that, do you admit or deny?†Defendant answered, “Admit.†The court continued, “A fourth strike. November 20th, 1978, State of Washington,
County of Spokane, convicted of the crime of rape, which in California would be
261, but they have some other name for it in Spokane, as a felony. Admit or deny?†Defendant replied, “Admit.â€
Defendant
admitted to suffering two out-of-state felony convictions, for kidnapping and
rape, and apparently also admitted that the convictions were equivalent to the
California offenses identified in Penal Code sections 207 (kidnapping) and 261
(rape). Both these California violations
would qualify as strikes. (See Pen.
Code, § 1192.7, subds. (c)(3) & (c)(20).)
The
Washington rape statute, Washington Revised Code Annotated, section 9A.44.040,
the first degree “when such person engages in sexual intercourse with another
person by forcible compulsion . . . .†This provision meets the elements of the
California rape statute, Penal Code section 261, subdivision (a)(2), defining rape
as “(a) . . . an act of sexual intercourse accomplished with a person
not the spouse of the perpetrator, . . . [¶]
(2) Where it is accomplished
against a person’s will by means of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the person or another.†The evidence before the court as to the
nature of defendant’s Washington rape conviction was sufficient to find that it
constituted a qualifying strike.
Washington
Revised Code Annotated section 9A.40.020 (2013)
“intentionally abduct[ing] another person with intent . . . [¶]
(b) To
facilitate commission of any felony or flight thereafter; or [¶] (c) To
inflict bodily injury on him or her . . . .†The term “abduct†is defined in Washington
Revised Code Annotated section 9A.40.010 as:
“to restrain a person by either (a) secreting or holding him or her in a
place where he or she is not likely to be found, or (b) using or threatening to
use deadly force.†(Wash. Rev. Code
Ann., § 9A.40.010 (1).)
name="_ftnref4" title="">[4] The statutory elements of first degree
kidnapping in the State of Washington do not appear to be identical to the
elements of the California offense, inasmuch as no element of asportation
appears to be required to be found guilty of first degree kidnapping in
Washington. It is uncertain, in the
absence of additional evidence concerning the nature of the Washington offense,
whether the record establishes that the Washington kidnapping conviction
constitutes a strike, although arguably defendant’s admission was tantamount to
an admission that the Washington kidnapping offense was equivalent to a strike
offense in California. We find it
unnecessary to resolve the matter definitively, however, because, in any case,
at least three strike prior offenses were proven, which were sufficient to support
imposition of a third-strike sentence in the instant case.
V. The Evidence Was Sufficient to Support
True Findings for Six Prior Prison Term Enhancements
Defendant
argues that the evidence was insufficient to support true findings as
to the six prior prison term enhancements, despite
defendant’s admissions, because
the prosecution failed to establish that the prior
prison terms were separate, or that the five-year “washout†period had not
elapsed. We disagree.
Defendant
relies on People v. Epperson (1985)
168 Cal.App.3d 856, 863, for the proposition that the admission of a prior
prison term enhancement allegation must specifically admit that the prior
prison terms occurred within the past five years in order to be valid. Defendant misapprehends the applicability of
People had conceded, that the defendant did remain free from prison custody,
and the commission of a new felony, for more than five years. (Id.
at
pp. 863-864.)
Under those circumstances, the bare admission that a conviction had
occurred was not an admission with respect to the serving of a prison term, or
the failure to remain free of a new conviction for a period of five years. Here, the court described the prior prison term
enhancements, which defendant would be admitting, as, “you did time in state
prison, and you never got out for more than five years, including
recently.†The court proceeded to
inquire as to each of the prior prison term enhancements, each of which defendant
admitted.
title="">[5] Defendant admitted to
separate felony convictions in 2003 (assault with a deadly weapon) (ADW), 1996
(petty theft with a prior), 1993 (recklessly evading an officer), 1990
(possession of controlled substance), 1987 (burglary), and 1978 (kidnapping). He directly admitted to serving a separate
prison term for each offense. The trial
court prefaced the taking of the admissions with the statement that each prior included
the failure to remain free from prison custody for a period of five years.
The
records before the court also showed that defendant was sentenced in Washington
State in 1978 to a maximum term of 20 years for the kidnapping offense. With respect to the 1987 burglary conviction,
defendant was sentenced to state prison in 1988 for a term of two years. Defendant was committed to state prison in
1992 for the possession of a controlled substance for a term of one year four
months. In 1993, he was committed to
prison on the evading arrest charge, for a concurrent term of three years. Defendant was committed to prison for the
petty-theft-with-a-prior offense for four years, in 1996. He was committed to prison in 2003, for the
assault with a deadly weapon, for a term of six years.
The
California Department of Corrections and Rehabilitation’s (CDCR) record of
defendant’s prison service indicated he was received in state prison in January
1988, in connection with case No. CR-81652, the first degree burglary (fifth
prison term prior), and paroled to Moreno Valley in October 1988. Defendant’s parole was suspended in January
1989, and he was re-released in March 1989.
Defendant was received back into prison in April 1989 and re-released in
July 1989. Defendant was returned to
custody in May 1990. He was paroled
again in August 1990. Defendant was
returned to custody in October 1991. He
was subject to an intake audit in March 1992, and ultimately discharged on his
prior term, but retained in case No. CR-41938 (possession of a controlled
substance, fourth prison term prior).
Defendant
appears to have been paroled on the controlled substance offense in August
1992. The parole audit note of that date
recorded that a restitution fine of $200 was imposed as to the controlled
substance offense.
Another
file audit in April 1993 noted the imposition of a $1,000 fine in case
No. 47873, a conviction of vehicle theft on the same
date and occasion as the
evading-an-officer case. Defendant was received into Soledad state
prison in July 1993. Defendant’s parole
had been revoked in April 1993, and he was apparently discharged on case No.
CR-41938 (controlled substance offense), but retained in case Nos. CR-47873
(vehicle theft) and CR-48136 (evading an officer, third prison term
prior). Defendant was paroled in
November 1994, and appears to have been discharged from parole by operation of
law as of December 1995.
In
September 1996, defendant was received at Calipatria State Prison in connection
with case No. CR-69435, petty theft with a prior (second prison term
prior). He was paroled in August 1999,
but his parole was suspended and he was returned to prison in March 2000. Defendant was paroled again in September
2000, and again suspended a month later in October 2000. He was released on parole yet again in March
2001, and September 2001, but a hold was placed on him in February 2002, when
he was arrested. He spent 300 days in
custody on that revocation, until he was paroled in December 2002. Defendant did not long remain out of custody,
however, as he suffered a revocation in January 2003, an arrest and
reinstatement in May 2003, and a return to custody in July 2003.
Defendant
was processed for intake at a state prison
facility in connection with case No. RIF110285 (assault with a deadly weapon,
first prison term prior) in October 2003.
Defendant was discharged in case No. CR-69435 as of January 2004, but he
was retained on case No. RIF110285 in July 2004. CDCR calculated defendant’s parole release
date in February 2008, with an expected release date in April 2008.
Defendant
was in fact released on parole in April 2008, but was returned to prison for
suspensions or revocations several times in 2009 and 2010. The instant case was filed in July 2010.
The
records of defendant’s prison custody clearly show that he did not remain free
from custody for a period of five years on any of the California
convictions. (See also
51, 61 [“[A]n admission of prior convictions where the charging information
specifically alleges the convictions resulted in prior separate prison terms is
deemed an admission such prison terms were separately served.â€].)
The
evidence, whether of defendant’s admissions alone or together with the
documentary evidence, was fully sufficient to support the court’s true findings
as to all six prison term prior enhancements.
DISPOSITION
The
issues raised on appeal deal solely with proof of the sentencing enhancement
allegations. As noted above, the trial
court properly admitted into evidence and considered the documentary evidence
submitted to prove the prior conviction allegations. The evidence was sufficient to support
findings that defendant had suffered at least two prior strike convictions; he
was properly sentenced as a third striker.
The evidence was also sufficient to support true findings as to each of
the six prior prison term one-year enhancements; the prior prison term
enhancements were properly imposed. The
judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
MCKINSTER
J.
We concur:
HOLLENHORST
Acting P. J.
MILLER
J.
supra, 113 Cal.App.4th 395 was
partially overruled in People v. Delgado
(2008) 43 Cal.4th 1059 (Delgado). To the extent that Luna suggested that both prongs of Penal Code section 245,
subdivision (a)(1)—assault with a deadly weapon other than a firearm, on the
one hand, or assault by use of force likely to cause great bodily injury, on
the other—would now qualify as a serious felony (strike), the Supreme Court rejected
it as to the great bodily injury prong.
(Delgado, supra, 43 Cal.4th at
p. 1070, fn. 4.)
name="_ftn2" title=""> [2] Formerly Washington Revised Code Annotated
section 9.79.170 (1977), recodified as section 9A.44.040 (1998). (See Wash. Adv. Legis. Serv. (1998), ch. 242,
§ 1 [eff. June 11, 1998].)
