Opinion
C080730
03-29-2017
THE PEOPLE, Plaintiff and Respondent, v. DARIN VICTOR CAMPO, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 14F777, 12F8973)
Defendant Darin Victor Campo pleaded no contest to possession of a controlled substance, carrying a concealed dirk or dagger, and transportation of methamphetamine. The trial court sentenced defendant to four years eight months in state prison.
Defendant now contends the trial court abused its discretion in determining that defendant had a prior serious felony conviction which disqualified him from serving his sentence in county jail.
We conclude it was improper to rely on the police report to find defendant's 1994 prior conviction was a serious felony for purposes of disqualifying him from serving his sentence in county jail. We will affirm defendant's convictions but remand for resentencing.
BACKGROUND
Given the narrow issue on appeal, it is not necessary to recount the facts of defendant's crimes. It is sufficient to note that in case No. 12F8973, a complaint charged defendant with possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a) - count 1) and carrying a concealed dirk or dagger (Pen. Code, § 21310 - count 2), and alleged that he had a prior serious or violent felony conviction. (§ 1170.12.) And in case No. 14F777, an information charged defendant with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and alleged he had a prior serious or violent felony conviction (§ 1170.12).
Undesignated statutory references are to the Penal Code.
Defendant pleaded no contest in case No. 12F8973 to possession of a controlled substance and carrying a concealed dirk or dagger, and he pleaded no contest in case No. 14F777 to a newly added charge of felony transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a) - count 2) in exchange for dismissal of the balance of charges and prior strike allegations in both cases and a sentencing lid of five years four months in state prison. The parties stipulated that the factual basis for the plea could be found in Redding Police Department case No. 14-3547 and Shasta County Sheriff's Department case No. 12-40914.
The written plea agreement signed and initialed by defendant describes the plea disposition as follows: "5 years, 4 months state prison lid at initial sentencing." Defendant initialed boxes stating that the offense for which he pleaded was "punishable by imprisonment in the state prison," and crossed out the box that provided for service of his sentence in county jail. He also initialed a Harvey waiver agreeing that the trial court could consider the facts of any dismissed charges and stricken allegations in imposing sentence.
See People v. Harvey (1979) 25 Cal.3d 754.
When defendant entered his no contest plea, he acknowledged he signed and initialed the written change of plea form, read and fully understood the form, reviewed the form with his attorney, asked questions when necessary, and discussed with his attorney the potential defenses available to him. Defendant also acknowledged he understood his plea agreement included a maximum sentence of "no more than a five-year four-month term in the Department of Corrections." The issue of where defendant would serve his term of confinement was not otherwise addressed at the plea hearing.
The trial court subsequently heard and denied a Marsden motion brought by defendant. Thereafter, defendant filed a motion to withdraw his plea based on ineffective assistance of counsel arguing his attorney failed to properly investigate the validity of the alleged prior strike, and misadvised him on the consequences of a guilty verdict at trial, namely the consequences if the prior strike allegation were found true. Defendant's moving papers included the declaration of defense counsel, attached to which were copies of the following documents related to defendant's prior 1994 conviction: the felony complaint, the written order at judgment and sentencing, the abstract of judgment, and the plea form.
See People v. Marsden (1970) 2 Cal.3d 118 --------
The People's opposition to defendant's motion argued, among other things, that the allegation of defendant's prior strike conviction, and particularly the allegation that he inflicted great bodily injury upon a non-accomplice, could be proved by the record which included the police report establishing the factual basis for defendant's guilty plea in the 1994 crime. A copy of the police report was attached to the opposition.
Defendant's motion to withdraw his plea was heard in March 2015. At the People's request, and without objection from defendant, the trial court took judicial notice of the file related to the 1994 conviction, including the police report. At the conclusion of the hearing, the trial court denied defendant's motion.
Later, at sentencing, the trial court determined the felony drug possession charge in case No. 12F8973 was decreased to a misdemeanor by operation of law, and further determined defendant was not eligible to serve his sentence in local custody pursuant to section 1170, subdivision (h) due to his 1994 prior serious felony conviction. The trial court sentenced defendant to four years eight months in state prison as follows: in case No. 14F777, the upper term of four years on count 2, and in case No. 12F8973, a consecutive term of eight months on count 2. The trial court granted the prosecution's motion to dismiss a new charge in Shasta County Superior Court case No. 14F5908.
The trial court granted defendant's request for a certificate of probable cause.
DISCUSSION
Defendant contends the trial court abused its discretion in determining that defendant had a prior serious felony conviction which disqualified him from serving his sentence in county jail.
A
In determining that defendant's prior serious felony conviction disqualified him from serving his sentence in county jail, the trial court stated as follows:
"Whether it is provable as a strike for purposes of a jury trial or court trial for enhancing the sentence is not the issue. The issue is something less than that, and I think it is much more analogous to the factual basis type of analysis. As both counsel are aware, in order for the Court to accept a plea, there needs to be a factual basis either that is stated on the record and agreed to by the defendant or the defendant will state something. That was the traditional way it was done in California years and years ago.
"California procedure allowed later on for a stipulation to the police report regarding the factual basis. Uhmmm, it is appropriate for a probation officer's report and recommendation to use the police report having been stipulated to as a factual basis to provide information to the Court to determine other things such as length of sentence, whether that sentence should be probationary or one served in the Department of Corrections for purposes of rule of court. And here that analogy I think makes the most sense because the [section 1170, subdivision (h)(3) determination] is not something that needs to be pled or proven, and so it's an apples and oranges analysis.
"While [People v. Enright (1982) 132 Cal.App.3d 631] which is the People's case does not, I don't think, stand for the proposition that the police reports, if they were stipulated to as a factual basis, become the, quote, record of the plea or a record of the conviction for purposes of proving it, it remains appropriate to review later to determine the underlying facts of the case so that the Court can determine, in this case specifically, where the prison term is to be done, and so that is how I'm going to approach it.
"As I understand, it was the factual basis of the previous plea, and it is obvious from those reports that [defendant] in the case which led to the [section] 243(d) conviction even though it was stricken here as a strike . . . the Court can look at that to determine whether or not he should be placed in the Department of Corrections or locally under realignment.
"Having set it, I believe, for purposes of the location determination, the Court can review the factual basis for the plea as stipulated to. And seeing those reports which were attached to an earlier People's motion for purposes of a motion to withdraw the plea, it's obvious that this was a personal infliction at the hands of [defendant] and that that does dictate that his term should be served in the Department of Corrections."
Defendant's counsel argued there was nothing in the record to demonstrate defendant stipulated to the police report as a factual basis for the plea to the 1994 conviction, and thus no evidence showing the 1994 conviction constituted a prior serious felony. The prosecution countered that defendant's plea agreement said he would serve his time in state prison. The trial court determined defendant's prior 1994 conviction was a serious felony and found him ineligible to serve his sentence in county jail.
B
Section 1170 provides in relevant part that where the defendant has a prior felony conviction "for a serious felony described in subdivision (c) of Section 1192.7" or a prior conviction "for a violent felony described in subdivision (c) of Section 667.5 . . . an executed sentence for a felony punishable pursuant to this subdivision shall be served in state prison." (§ 1170, subd. (h)(3).) Section 1192.7 describes the types of offenses that are considered serious felonies, including "any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice . . . ." (§ 1192.7, subd. (c)(8).)
In order to determine whether a prior conviction constitutes a serious felony for purposes of section 1192.7, " ' "the court may consider the entire record of the prior conviction as well as the elements of the crime." [Citation.] 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.' [Citation.]" (People v. Griffis (2013) 212 Cal.App.4th 956, 965 (Griffis) [addressing whether a prior conviction from another jurisdiction constitutes a serious or violent felony in California for purposes of sections 667.5 or 1192.7].) Items which are part of the record of conviction "must comport with the rules of evidence, particularly the hearsay rule and exceptions thereto. [Citations.]" (People v. Perez (2016) 3 Cal.App.5th 812, 821, fn. 9 (Perez).) We review a trial court's factual findings regarding the nature of a prior conviction for substantial evidence, viewing the record in the light most favorable to the judgment. (Griffis, supra, 212 Cal.App.4th at p. 965.)
Defendant argues the trial court's reliance on the police report was improper because defendant never stipulated to the police report as the factual basis for his plea to the prior crime, the police report was inadmissible as part of the record of conviction, and there was otherwise no admissible evidence to support such a finding. The argument has merit.
The record of the prior conviction included documents attached to defendant's motion to withdraw his plea -- the felony complaint alleging defendant used force and violence on the victim resulting in the infliction of serious bodily injury, the written order at judgment and sentencing, the abstract of judgment, and the plea form -- as well as the police report attached to the People's opposition to defendant's motion (of which the trial court took judicial notice without objection from defendant). The police report described the events that led to defendant's arrest, including that defendant forced his way into the victim's home, struck the victim in the head repeatedly, and knocked the victim to the ground, causing her to lose consciousness. As the victim regained consciousness, defendant pulled her up by her hair and began pulling on her shirt, ripping it before the victim was able to escape and call for help.
The trial court relied solely on the police report to conclude that the prior battery with serious bodily injury constituted a serious felony. After assuming defendant stipulated to the police report as the factual basis for his plea in the prior case, the court concluded it was "obvious that this was a personal infliction at the hands of [defendant] and that that does dictate that his term should be served in the Department of Corrections." Under these circumstances, it was error to rely on the police report. "The term 'record of conviction' has been 'used technically, as equivalent to the record on appeal [citation], or more narrowly, as referring only to those record documents reliably reflecting the facts of the offense for which the defendant was convicted.' (People v. Reed (1996) 13 Cal.4th 217, 223; see People v. Houck (1998) 66 Cal.App.4th 350, 356.) Police reports are not part of the record of conviction (see Shepard v. United States (2005) 544 U.S. 13, 16 [161 L.Ed.2d 205, 211]; Draeger v. Reed (1999) 69 Cal.App.4th 1511, 1521) . . . ." (Perez, supra, 3 Cal.App.5th at p. 821, fn. 9.)
Further, the record does not support the People's argument that defendant stipulated that the police report established a factual basis for his plea. The People fail to demonstrate the facts stated in the police report are otherwise admissible or reliable, and thus fail to demonstrate that the police report comports with the rules of evidence. (Perez, supra, 3 Cal.App.5th at p. 821, fn. 9.)
In the absence of the police report, the record in its current state does not support the trial court's finding that defendant personally inflicted great bodily injury on the victim who was not an accomplice for purposes of finding the prior crime was a serious felony within the meaning of section 1192.7. Accordingly, the case must be remanded for resentencing. "The People will have the opportunity to introduce new evidence that the prior[] qualified as a strike, if they can." (Griffis, supra, 212 Cal.App.4th at p. 965.)
DISPOSITION
The matter is remanded for resentencing. In all other respects, the judgment is affirmed.
/S/_________
MAURO, Acting P. J. We concur: /S/_________
DUARTE, J. /S/_________
RENNER, J.