Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA328988, Morris Jones, Judge. Affirmed.
Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
I.
INTRODUCTION
Defendant and appellant Mark Allen Brown was convicted on one count of possession of a weapon while in custody. (Pen. Code, § 4502, subd. (a).) He was sentenced to the low term of two years, which was doubled to four years because he had a prior strike. On appeal, defendant contends there was insufficient evidence to support the trial court’s finding that his Washington State prior conviction qualified as a strike under California law. We affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
On August 8, 2007, defendant was in custody at the Men’s Central Jail. During a search of defendant’s belongings, a Los Angeles County Sheriff discovered a razor blade that had been altered to have a handle. This item is highly dangerous. It can be used as a weapon, commonly known as a shank.
Defendant was charged by amended information with the crime of custodial possession of a weapon in violation of Penal Code section 4502, subdivision (a). A jury found defendant guilty as charged.
The information also alleged that defendant suffered one prior serious or violent felony conviction pursuant to Penal Code sections 1170.12, subdivisions (a) through (d) and had served one prior prison term within the meaning of Penal Code section 667.5, subdivision (b). These allegations were based on a second degree assault conviction from the State of Washington, in violation of Washington Rev. Code section 9A.36.021(1)(f). The conviction involved domestic violence. The Washington State conviction records show that the Washington court made a “special verdict/finding of sexual motivation....” pursuant to Washington Rev. Code section 9.94A.127, i.e., that the crime was committed for sexual motivation. The conviction stemmed from a September 27, 2000, guilty plea to an amended information which specifically stated that defendant “did, with intent to commit the felony of Rape, intentionally assault [his victim and] further [he] committed said crime with sexual motivation under the provisions of [Revised Code of Washington] RCW 9.94A.030 and 9.94A.127.”
After the jury returned its verdict that defendant committed the crime of custodial possession of a weapon (Pen. Code, § 4502, subd. (a)), the trial court found all prior conviction allegations true. In doing so, the trial court found that the Washington State conviction fell directly within the parameters of California Penal Code section 1192.7, subdivision (c)(1), which is an assault with intent to commit rape. (Pen. Code, §§ 220, 261, subd. (a)(2).)
The trial court then sentenced defendant to the low term of two years, doubled to four years because he had a prior strike.
III.
DISCUSSION
Defendant contends that the Washington State conviction did not qualify as a strike under California law. We conclude that there was substantial evidence to support the trial court’s finding, and thus, we affirm.
“A conviction in another jurisdiction qualifies as a strike if it contains all of the elements required for a crime to be deemed a serious or violent felony in this state. [Citations.]” (People v. Rodriguez (2004) 122 Cal.App.4th 121, 128.) The relevant inquiry is “whether the offense of which the defendant was previously convicted involved conduct which satisfies all of the elements of the comparable California serious felony offense.” (People v. Myers (1993) 5 Cal.4th 1193, 1195; People v. Mumm (2002) 98 Cal.App.4th 812, 815-816.) Thus, it “must ‘include[] all of the elements of any serious felony’ in California. [Citation.]” (People v. Warner (2006) 39 Cal.4th 548, 552-553.) In making that determination, the trier of fact may “consider the entire record of the proceedings leading to imposition of judgment on the prior conviction to determine whether the offense of which the defendant was previously convicted involved conduct which satisfies all of the elements of the comparable California” offense. (People v. Myers, supra, at p. 1195; People v. Reed (1996) 13 Cal.4th 217, 223; People v. Riel (2000) 22 Cal.4th 1153, 1204-1205; People v. Whitney (2005) 129 Cal.App.4th 1287, 1297.) If the record fails to disclose the facts of the offense actually committed, the finder of fact must presume the prior conviction was for the least offense punishable under the foreign law. (People v. Rodriguez (1998) 17 Cal.4th 253, 261-262; People v. Mumm, supra, at p. 816.)
When a defendant challenges the sufficiency of the evidence to sustain the trial court’s finding that the prosecution has proven all elements of the enhancement, we must determine whether substantial evidence supports that finding. “ ‘The test on appeal is simply whether a reasonable trier of fact could have found that the prosecution sustained its burden of proving the enhancement beyond a reasonable doubt.’ [Citation.]” (People v. Rodriguez, supra, 122 Cal.App.4th at p. 129.) In making this determination, we review the record in the light most favorable to the trial court’s findings. (Ibid.)
Under California law, to commit the crime of assault with intent to commit forcible rape, the offender need only have an unlawful “intent to and an unlawful attempt to have sexual intercourse by force, violence or fear of bodily injury, without [the] consent of the victim. [Citations.]” (People v. Dixon (1999) 75 Cal.App.4th 935, 942; Pen. Code, §§ 220, 261, subd. (a)(2).) The California statute does not include the elements of inflicting tortuous pain committed with the purpose of sexual arousal. (Dixon, supra, at pp. 942-943.) A defendant can commit the crime if the defendant “merely intends to accomplish the sexual intercourse.” (Id. at p. 943.)
In comparison, the Washington State offense of second degree assault signifies that the defendant knowingly inflicted bodily harm which causes such pain or agony as to be the equivalent of that produced by torture, which is “the infliction of severe or intense pain as punishment or coercion, or for sheer cruelty.” (State of Washington v. Peterson (Wash. 1997) 948 P.2d 381, 384 [133 Wash.2d 885]; RCW 9A.36.021(1)(f).) A true finding as to a sexual gratification allegation signifies that one of the defendant’s purposes in committing the assault was for his or her sexual gratification. (State of Washington v. Atkins (Wash.App. 2005) 123 P.3d 126, 129 [130 Wash.App. 395]; State of Washington v. Halstien (Wash. 1993) 857 P.2d 270, 276 [122 Wash.2d 109].)
Thus, when defendant pled guilty in Washington State to second degree assault, with a true finding of sexual gratification, he admitted that he inflicted severe or intense pain as punishment or coercion, or for sheer cruelty, with the purpose of satisfying his sexual gratification. Additionally, defendant’s guilty plea was to allegations that he committed the assault “with the intent to commit the felony of Rape....” Defendant’s plea, taken together with the allegations that formed the factual basis of his plea, provides substantial evidence to support the trial court’s finding that the Washington State conviction met the elements of the comparable crime in California of committing the crime of assault with intent to commit forcible rape.
The evidence presented by the People sufficiently proved defendant’s Washington State conviction for second degree assault conviction was a strike under California law.
IV.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., KITCHING, J.