Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. Darryl B. Ferguson, Judge. Super. Ct. No. VCF186761
William G. Prahl, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari L. Ricci, Deputy Attorneys General, for Plaintiff and Respondent.
Before Wiseman, Acting P.J., Dawson, J., and Kane, J.
OPINION
Defendant William Bratton appeals from the trial court’s finding that his 1997 prior conviction of Penal Code section 245, subdivision (a)(1) (assault with a deadly weapon or by any means likely to cause great bodily injury), constitutes a serious felony within the meaning of section 667, subdivision (a), and a prior serious felony strike within the meaning of California’s Three Strikes law. We will affirm.
All subsequent statutory references are to the Penal Code.
PROCEDURAL AND FACTUAL HISTORIES
Bratton was charged with murder. (§ 187, subd. (a).) The information alleged that Bratton had a prior serious-felony strike. (§§ 1170.12, subds. (a)-(d), 667, subds. (a)(1), (b)-(i).) It was further alleged that Bratton had committed a prior serious felony. (§ 667, subd. (a)(1).)
Pursuant to a negotiated plea agreement, Bratton entered a no contest plea to the reduced charge of voluntary manslaughter (§ 192, subd. (a)) and admitted personal use of a firearm (§ 12022.5, subd. (a)(1)). The issue of whether Bratton had previously suffered a prior serious-felony conviction and a prior serious-felony strike was tried by the court. The court found that Bratton had been convicted of assault with a deadly weapon (§ 245, subd. (a)(1)) and found true the serious-felony (§ 1192.7, subd. (c)(31)) and the serious-felony-strike (§ 1192.7, subd. (c)(1)) allegations.
The court incorrectly refers to section 12022.5, subdivision (a)(1). In 2002, subdivision (a)(1) was rewritten without substantive change. (See Stats. 2002, ch. 126, § 3.) The current statute is section 12022.5, subdivision (a). We will order the abstract corrected.
Pursuant to the plea agreement, Bratton was sentenced to 15 years: six years (three years doubled) for manslaughter, plus a consecutive four years for the firearm-use enhancement, plus five consecutive years for the previous serious-felony strike.
DISCUSSION
Bratton argues that the record is ambiguous as to whether he was convicted in 1997 for assault with a deadly weapon, a prior serious felony within the meaning of section 1192.7, subdivision (c)(31). He asserts that it is not clear whether he was convicted of assault with a deadly weapon (a serious felony) or assault by means to cause great bodily injury (not a serious felony). Because it is not clear he was convicted of a serious felony, he argues, the prior serious-felony enhancement (§ 667, subd. (a)(1)) and the prior serious-felony-strike enhancement (§ 1170.12, subd. (c)) were not supported by substantial evidence. We disagree.
It is a felony to commit an assault with a deadly weapon or by any means of force likely to cause great bodily injury. (§ 245, subd. (a)(1).) Only assault with a deadly weapon is a serious felony within the meaning of section 1192.7, subdivision (c)(31). A prior serious felony conviction qualifies for a five-year sentence enhancement. (§ 667, subd. (a).) Separately, a prior serious-felony conviction qualifies for a doubled sentence enhancement under the Three Strikes law. (§ 1170.12, subd. (c).) The issue on appeal is whether there was substantial evidence to support the court’s finding that Bratton’s 1997 conviction was for assault with a deadly weapon. If so, the enhancements were properly ordered.
It is well settled that we apply the substantial-evidence standard in reviewing the sufficiency of evidence of a prior-conviction finding. (People v. Delgado (2008) 43 Cal.4th 1059, 1067 (Delgado).) With that standard in mind, we turn to Bratton’s contentions.
The court was provided with a certified record of Bratton’s previous conviction, including the abstract of judgment, complaint, change of plea waiver form, and fingerprint card. The abstract indicated Bratton had pled guilty to “ASSAULT W/ADW W/FORCE LIKELY TO PRODUCE GBI” in violation of section 245, subdivision (a)(1). The complaint alleged that Bratton had “willfully and unlawfully commit[ed] an assault … with a deadly weapon, to wit, automobile, and by means of force likely to produce great bodily injury.” (Italics added.) Bratton’s change-of-plea form and fingerprint card both indicated he pled to section 245, subdivision (a)(1), as alleged in the complaint.
“[T]he relevant inquiry in deciding whether a particular prior conviction qualifies as a serious felony for California sentencing purposes is limited to an examination of the record of the prior criminal proceeding to determine the nature or basis of the crime of which the defendant was convicted.” (People v. McGee (2006) 38 Cal.4th 682, 691.) In this case, the court’s finding does not rest on an ambiguous abstract of judgment alone. (Delgado, supra, 43 Cal.4th at p. 1065.) It comprises a charging document that identifies the assault as one that includes, as its element, the use of an identified deadly weapon.
The 1997 complaint was written in the conjunctive, and violations of both prongs of section 245, subdivision (a)(1) were alleged. Consequently, Bratton pled to both assault with a deadly weapon and by means of force likely to produce great bodily injury. The complaint also identifies the deadly weapon used. Though the abstract of judgment could be more precise, the complete record clearly establishes that Bratton was convicted of assault with a deadly weapon. None of the cases cited by Bratton require the opposite conclusion.
Bratton attempts to retry the facts of the prior conviction on appeal. He argues how and when automobiles can be used as deadly weapons and suggests he only intended to flee or evade officers in the automobile. Bratton ignores his admission to the charge as alleged in count three of the complaint. (See People v. Watts (2005) 131 Cal.App.4th 589, 594 [plea constitutes admission of each element of offense charged].)
We find no merit in Bratton’s “estopp[el]” argument. The prosecutor, writing a letter to the Napa County Superior Court requesting certified copies of Bratton’s previous conviction, wrote the following:
“As discussed on the telephone, the 969b packet lists the charge as the PC245(a)(1), but has the description of the crime as Assault w/ADW and w/Force Likely to Produce GBI. This should be one charge or the other and we need to know which one is correct so that we can determine whether it’s a strike.”
Bratton argues that, because the prosecutor expressed doubts in the letter about the conviction, respondent is “estopped” from defending the trial court’s finding. He offers no authority and we have found none lending support to his novel contention that the initial uncertainty of a deputy prosecutor about whether a prior conviction classifies as a strike, based on the abstract description, bars the prosecution from charging the prior strike. As mentioned, the complaint was written in the conjunctive and Bratton pled to both prongs of section 245, subdivision (a)(1). As the record clearly demonstrates, Bratton had full notice of the charges and the consequences of his plea. A review of the entire record of conviction resolves any doubt. The issue was decided by the trial court and we affirm it on appeal.
Respondent is correct that there were errors in the abstract of judgment. We agree the abstract must be corrected. Since section 12022.5, subdivision (a)(1), does not exist, the abstract of judgment should be corrected to reflect the correct statute, section 12022.5, subdivision (a). (See Stats. 2002, ch. 126, § 3.) In reviewing the record, we agree the court’s sentence was incorrectly recorded in the abstract. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [courts may correct clerical errors at any time; appellate courts properly may order correction of abstracts of judgment that do not accurately reflect oral judgments of sentencing courts]; In re Maribel T. (2002) 96 Cal.App.4th 82, 86 [when court’s written order does not conform to oral pronouncement, appellate court may direct that order be corrected].) Likewise, the abstract should be corrected to reflect the sentencing enhancements actually imposed by the court. (Ibid.) The five-year firearm enhancement should be corrected to reflect a four-year firearm enhancement. (§ 12022.5, subd. (a).) The four-year prior serious-felony enhancement should be corrected to reflect a five-year prior serious-felony enhancement. (§ 667, subd. (a).)
DISPOSITION
The judgment is affirmed. The trial court is ordered to modify the abstract of judgment as follows:
1. Conviction of section 12022.5, subdivision (a)(1), shall be corrected to reflect a conviction of section 12022.5, subdivision (a).
2. The five-year firearm-enhancement conviction shall be corrected to reflect a four-year firearm-enhancement conviction.
3. The four-year prior serious-felony-enhancement conviction shall be corrected to reflect a five-year prior serious-felony-enhancement conviction.
The trial court is ordered to provide corrected copies of the abstract of judgment to the appropriate authorities.