Opinion Bank # O-265 (Re: F 17.24.1 n25 [Appellate Challenge To Out-Of-State Serious Prior Based On Failure To Establish Which Theory Was The Predicate For The Prior].)
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Filed August 23, 2000
NOT TO BE PUBLISHED
COURT OF APPEAL, FOURTH DISTRICT
STATE OF CALIFORNIA
Plaintiff and Respondent, E025652
v. (Super.Ct. No. RIF082900)
ULYSSES C. BOWENS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Eric G. Helgesen, Judge. (Retired Judge of the former Tulare Mun. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part, reversed in part, and remanded with directions.
Michael B. Dashjlan, under appointment by the Court of Appeal, for Defendant and Appellant. Affirmed in part, reversed and remanded in part.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gary Brozio and Barry J.T. Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
In a bifurcated trial, a jury convicted defendant of two counts of lewd and lascivious acts upon a child under the age of 14 by use of force (Pen. Code, § 288, subd. (b)(1) [Footnote 1]) (counts I and II) and two counts of lewd and lascivious acts upon a child under the age of 14 (§ 288, subd. (a)) (counts III and IV). Thereafter, the trial court found true that defendant had suffered the alleged prior Texas robbery conviction. As a result, defendant was sentenced to a total of 57 years in state prison. On appeal, defendant contends (1) there is legally insufficient evidence to support the true finding on the prior conviction, and (2) the trial court erred by instructing the jury with the modified version of CALJIC No. 2.90. We agree with the parties that the true fmding on the prior robbery conviction must be reversed. However, we reject defendant’s remaining contention.
DISCUSSION [Footnote 2]
A. Sufficiency of Evidence Re: Defendant’s 1990 Prior Conviction
Defendant claims there is insufficient evidence to prove that the conduct underlying the prior Texas robbery conviction would have been a serious or violent felony in California, and therefore the true findings on the strike and five-year prior allegations should be stricken. The People concede and argue that the matter must be remanded to the trial court for retrial on the prior, should they elect to present further evidence on the nature of the Texas conviction.
As defendant points out, the true findings on the strike and five-year prior allegations were based on the same prior conviction – a 1990 Texas conviction for robbery. Defendant pleaded guilty in the Texas proceeding to second degree robbery in violation of Texas Penal Code section 29.02. That section states: “(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 and with intent to obtain or maintain control of the property, he: [¶] (1) intentionally, knowingly, or recklessly causes bodily injury to another; or [¶] (2) intentionally or knowingly threatens or places another in fear of inuninent bodily injury or death. [¶] (b) An offense under this section is a felony of the second degree.” The Texas theft statute, in relevant part, states: “(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property. [¶] (b) Appropriation of property is unlawful if [¶] (1) it is without the owner’s effective consent ….” (Tex. Pen. Code, § 31.03.)
Robbery under California law is a “serious” felony under section 1192.7, subdivision (c)(19) and therefore qualifies as a strike for three strikes purposes. (§ 667, subd. (d)(1).) Defendant points out, however, among many other disparities, that unlike Texas robbery law, an element of robbery in California is “the intent to permanently deprive the victim of possession of the property.” (People v. Green (1996) 50 Cal.App.4th 1076, 1083-1084; see also Thomas v. State (Tex. 1988) 753 S.W.2d 688, 691 In re Albert A. (1996) 47 Cal.App.4th 1004, 1007.) Further, unlike in California, the Texas robbery law does not require that the intent to steal arise before the assault – an after-formed intent is sufficient. (People v. Kelly (1992) 1 Cal.4th 495, 528; Alaniz v. State (Tex. 1944 177 S.W.2d 965, 967.) It is therefore possible to sustain a robbery conviction in Texas for a crime that would not be robbery or any serious or violent felony in California, as the parties point out. Nonetheless, as defendant acknowledges, a Texas robbery conviction may be considered the equivalent of a California robbery conviction if the evidence shows that the conduct underlying the Texas robbery conviction would have been a serious or violent felony in California.
The “least adjudicated elements” test is the appropriate one for determining whether the Texas prior qualifies as a serious felony and a strike under California law. (People v. Guerrero (1988) 44 Cal.3d 343, 346-348, 354-355; People v. Myers (1993) 5 Cal.4th 1193, 1195.) Our Supreme Court explained: “A defendant whose prior conviction was suffered in another jurisdiction is, therefore, subject to the same purnshment as a person previously convicted of an offense ‘involving the saxne conduct in California.” (Myers, supra, at p. 1201.) In other words, in the absence of proof to the contrary, it will be presumed that a prior conviction involved only the minimum conduct necessary to satisfy the elements of the prior offense. (People v. Rodriguez (1998) 17 Cal.4th 253, 262.)
Under the cur-rent version of the “least adjudicated elements” test, the trier of fact may consider the entire record of the proceedings leading to the prior conviction to determine whether the prior offense “involved conduct which satisfies all of the elements of the comparable California serious felony offense.” (People v. Myers, supra, 5 Cal.4th at p. 1195.) If not precluded by the rules of evidence or other statutory limitations, the trier of fact may go beyond the least adjudicated elements of the offense and consider evidence found within the entire record of the foreign conviction. (Ibid.)
Where, as here, the prior conviction resulted from a guilty plea, the court may consider the accusatory pleading and the record of the plea to determine whether a particular element was adjudicated. (People v. Johnson (1991) 233 Cal.App.3d 1541, 1548; see also People v. Guerrero, supra, 44 Cal.3d 343, 345, 356; People v. Harrell (1989) 207 Cal.App.3d 1439, 1444.) An element is considered to have been adjudicated if it was alleged in the accusatory pleading, even if it is not included in the statutory definition of the crime to which the defendant pleaded guilty. This is because a defendant’s guilty plea constitutes “his voluntary admission be committed the acts alleged in the indictment. (People v. Hayes (1992) 6 Cal.App.4th 616,623.)
Here, in support of the strike allegations, the prosecution introduced court documents of the 1990 Texas proceeding. The 1990 judgment stated only that defendant entered into a plea bargain in which he pleaded guilty to second degree robbery, with no enhancement or deadly weapon use findings, and received 10 years’ probation. The Texas indictment alleged that defendant “did … intentionally and knowingly while in the course of committing theft of property and with intent to obtain and maintain control of said property, threaten and place Carol Bernhart in fear of imminent bodily injury and death . . .”
The Texas record as presented below contained no further details of the crime, except for a statement in the terms of probation that defendant is to pay restitution to a Gary Garrison (not the same name alleged as the victim in the charging document) and some documents on subsequent revocation of defendant’s probation which shed no light on the nature of the underlying robbery. As the People note, the problem in this case was that there was no way of determining from the record presented whether defendant committed in Texas what would be robbery in California. Therefore, the true finding that defendant’s Texas robbery conviction was a strike or serious or violent felony within the meaning of section 667, subdivision (a), (c), and (e), and section 1170.12, subdivision (c) must be reversed.
Nevertheless, since proof of a prior conviction is not subject to double jeopardy constraints, where the evidence is insufficient the appropriate remedy is to remand to allow the prosecution to retry the prior conviction allegation. (People v. Cortez (1999) 73 Cal.App.4th 276, 284; Monge v. California (1998) 524 U.S. 721 [118 S.Ct. 2246, 141 L.Ed.2d 615, 625-628]; People v. Hernandez (1998) 19 Cal.4th 835, 840.)[Footnote 3] If the prosecution elects not to retry the matter, the court must resentence the defendant without the prior conviction. (People v. Jones (1999) 75 Cal.App.4th 616, 635.)
B. CALJIC No. 2.90 Instruction
Defendant contends the instruction on “reasonable doubt” (CALJIC No. 2.90 (6th ed. 1996) erroneously defined it ‘in terms of an “abiding conviction,” which the jury could have understood as something below the constitutional minimum burden of proof
Defendant is wrong. (People v. Cochran (1998) 62 Cal.App.4th 826, 833 [Fourth Dist., Div. Two]; People v. Craig (1998) 65 Cal.App.4th 1082, 1092-1093 [Fourth Dist., Div. Two]; People v. Haynes (1998) 61 Cal.App.4th 1282, 1298-1300; People v. Sanchez (1997) 58 Cal.App.4th 1435, 1451; People v. Aquilar (1997) 58 Cal.App.4th 1196, 1207-1209; People v. Godwin (1996) 50 Cal.App.4th 1562, 1571-1572; People v. Barillas (1996) 49 Cal.App.4th 1012, 1022; People v. Hurtado (1996) 47 Cal.App.4th 805, 815-816; People v. Carroll (1996) 47 Cal.App.4th 892, 895-896; People v. Tran (1996) 47 Cal.App.4th 253, 263; People v. Light (1996) 44 Cal.App.4th 879, 884-889; People v. Torres (1996) 43 Cal.App.4th 1073, 1078.) The trial court therefore did not err in giving the modified version of CALJIC No. 2.90.
The true finding on the strike allegation based on defendant’s prior conviction for robbery is reversed. The matter is remanded to the trial court for retrial of that allegation, or for resentencing in the event the allegation is not retried or, if retried, is not proved. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED
Footnote 1: All future statutory references are to the Penal Code unless otherwise specified.
Footnote 2: Because our conclusion in this appeal is not dependent on the facts of the case, we will not recount those details.
Footnote 3: Presuming that this court will follow the recent decision of our brethren in People v. Mitchell (2000) 81 Cal.App.4th 132, which held that fundamental fairness required application of principles of law of the case and res judicata to bar relitigation of prior serious felony conviction for purposes of both five-year enhancement and strike, the People argue that that case was fallaciously decided, and defendant, in his reply brief, asserts it was correctly decided. We conclude it would be premature for us to decide this issue at the present time. (See People v. Swain (1996) 12 Cal.4th 593, 610; People v. Zermeno (1999) 21 Cal.4th 927, 933, fn. 3.)