Opinion
G054674
08-20-2018
THE PEOPLE, Plaintiff and Respondent, v. ERIC JASON FRAHS, Defendant and Appellant.
Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Matthew Mulford and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 16CF0837) OPINION Appeal from a judgment of the Superior Court of Orange County, Glenn R. Salter, Judge. Affirmed. Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Matthew Mulford and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
About three years ago, defendant Eric Jason Frahs pleaded guilty to committing "an assault upon the person of John Doe with a . . . broken beer bottle." About a year ago, a jury found Frahs guilty of two robberies and a related misdemeanor charge. In a subsequent bench trial, the trial court found Frahs' prior conviction (an assault with a deadly weapon) to be a serious felony (a "strike") and imposed a nine-year sentence.
Frahs argues that his prior assault conviction is not a strike because a broken beer bottle cannot be a deadly weapon. We disagree and affirm the judgment.
I
FACTS AND PROCEDURAL BACKGROUND
In March 2015, the prosecution filed a felony complaint, which alleged that Frahs had committed "an assault upon the person of John Doe with a deadly weapon and instrument, [a] broken beer bottle." (Pen. Code, § 245(a)(1).) The complaint further alleged that Frahs "personally inflicted great bodily injury . . . during the commission . . . of the above offense." (§ 12022.7, subd. (a).)
Any further undesignated statutory references are to the Penal Code.
Frahs pleaded guilty to the felony assault charge and agreed to be placed on formal probation. The prosecution dismissed the great bodily injury enhancement. Frahs signed an advisement and waiver of rights form. Frahs initialed a preprinted paragraph that read: "I understand that my conviction in this case is for a serious or violent felony ('strike') which may result in . . . substantially increased penalties, and a term in state prison for any future felony conviction." Frahs initialed a handwritten paragraph that read: "I willfully and unlawfully committed an assault upon the person of John Doe with a broken beer bottle." (§ 245, subd. (a)(1).) The court found that Frahs intelligently and voluntarily waived his constitutional rights.
In June 2016, the prosecution filed an information alleging that Frahs had committed two counts of second degree robbery and one count of throwing a substance at vehicle. (§§ 211, 211.5; Veh. Code, § 23110, subd. (b).) The complaint further alleged that Frahs had been previously convicted of the 2015 assault charge, and that the conviction was a serious felony (a "strike"). A jury found Frahs guilty of the two robbery counts and a related lesser-included charge.
The facts underlying the convictions are irrelevant given that Frahs is only appealing the true finding as to the prior strike conviction.
After the jury trial, the court conducted a bench trial on the prior 2015 felony assault conviction. The prosecution introduced a "conviction packet," which included the 2015 complaint, the advisement of rights and waiver forms, and the underlying minute orders. The court found the prior felony strike conviction to be true. The court imposed a sentence of nine years, which included a sentence enhancement (low term doubled) for the alleged prior strike conviction.
II
DISCUSSION
Frahs argues that his assault with a deadly weapon prior conviction was not a strike because a broken beer bottle cannot be a deadly weapon.
The prosecution is required to prove a prior strike conviction beyond a reasonable doubt, and when a defendant challenges the decision we ordinarily review the record for substantial evidence. (People v. Delgado (2008) 43 Cal.4th 1059, 1065 (Delgado).) However, the definition of terms within a particular statute is a question of statutory interpretation, which we review de novo. (People v. Willliams (2010) 184 Cal.App.4th 142, 146.)
Under the "Three Strikes" sentencing scheme, a defendant's punishment for a felony conviction is ordinarily doubled when the prosecution has alleged and proven a prior conviction for a crime designated as either a "violent felony" or a "serious felony." (§§ 667.5, subd. (c), 1192.7, subd. (c).) One of the crimes designated as a serious felony is an "assault with a deadly weapon." (§ 1192.7, subd. (c)(31).)
The term "assault" is defined by statute: "An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) The crime is punished in a variety of ways depending on the severity of the offense. A misdemeanor (or simple) assault is punishable by up to six months in jail. (§ 241.) An assault with a deadly weapon can be punished as either a misdemeanor or a felony (a wobbler): "Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment." (§ 245, subd. (a)(1), italics added.)
What constitutes "a deadly weapon or instrument other than a firearm" is not defined within the statute. (See § 245, subd. (a)(1).) However, the definition is well settled under case law. "As used in section 245, subdivision (a)(1), a 'deadly weapon' is 'any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.'" (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1030, italics added [hands or feet are not a deadly weapon, a deadly weapon is "extrinsic to the body"].)
Frahs attempts to draw a distinction between "deadly weapon" and "instrument," but the terms are used interchangeably within the statute and throughout the relevant cases. --------
Therefore, the question of what constitutes "a deadly weapon or instrument other than a firearm" is ordinarily a question of fact. (§ 245, subd. (a)(1); see CALCRIM No. 860 ["A deadly weapon is any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury"]; see also, e.g., People v. McCoy (1944) 25 Cal.2d 177, 188 [a knife, though not inherently deadly, was a deadly weapon as it was used]; In re Brandon T. (2011) 191 Cal.App.4th 1491, 1497 [a butter knife was not a deadly weapon where the minor only caused a small scratch to the victim's cheek]; People v. Page (2004) 123 Cal.App.4th 1466, 1472 [a pencil was a deadly weapon where defendant held it up to the victim's throat and threatened to stab him].)
Here, during the bench trial, the court was presumably unaware of the underlying facts of the 2015 assault. But Frahs had admitted on the plea form a factual basis for his plea: "an assault upon the person of John Doe with a . . . broken beer bottle." Further, Frahs had pleaded guilty to violating section 245, subdivision (a)(1): "an assault upon the person of another with a deadly weapon or instrument other than a firearm." (See People v. Ward (1967) 66 Cal.2d 571, 574 ["A guilty plea amounts to an admission of every element of the crime and is the equivalent of a conviction"].) Moreover, Frahs had acknowledged on the plea form that he was pleading to a strike. Thus, there was substantial evidence to support the court's true finding on the prior strike conviction. (§ 1192.7, subd. (c)(31) ["an assault with a deadly weapon"].)
In this appeal, Frahs argues that the meaning of "deadly weapon" only applies to "inherently" deadly weapons. He then argues that a broken beer bottle does not qualify as an inherently deadly weapon. But no statute states that a deadly weapon must be "inherently" deadly. And Frahs cites no case law in support of his proposition. We must therefore adhere to the long-standing definition of "deadly weapon" as stated by our Supreme Court. (See People v. Aguilar, supra, 16 Cal.4th at pp. 1028-1029 ["a 'deadly weapon' is 'any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury'"]; see also Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ["Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction"].) Indeed, the cases cited by Frahs generally concern an unrelated issue regarding an earlier version of section 245, subdivision (a)(1). (See, e.g., Delgado, supra, 43 Cal.4th 1059.)
In Delgado, supra, 43 Cal.4th at page 1065, a jury convicted defendant of second degree robbery and related offenses. In a bench trial, the prosecution alleged that defendant had a prior serious felony conviction for an assault under section 245, subdivision (a)(1). (Delgado, at p. 1065.) At that time, there were two separate assault crimes included under subdivision (a)(1). One offense included "all assaults committed with a deadly weapon other than a firearm," the other offense included all assaults committed by "'means of force likely to produce great bodily injury.'" (Id. at pp. 1065, 1067.) The Supreme Court held that because it could not determine precisely which offense the defendant had committed, the trial court's finding of "an assault with a deadly weapon" could not stand. (Delgado, at pp. 1065-1073.)
In 2011 though, "the Legislature amended section 245, removing assaults 'by any means of force likely to produce great bodily injury' from subdivision (a)(1), and placing the language in newly added subdivision (a)(4) of section 245." (People v. Puerto (2016) 248 Cal.App.4th 325, 330 (Puerto).) In Puerto, the defendant made the same claim that Frahs is advancing in this appeal (that his prior section 245, subdivision (a)(1), conviction was not a strike). But the appellate court held that the defendant's "reliance on Delgado is misplaced because that case concerned a version of section 245[, subdivision] (a)(1) that was not in effect when defendant committed his prior assault offense." (Puerto, at p. 329.) The Puerto court concluded that: "Defendant pleaded . . . to 'commit[ting] an assault upon the person of another with a deadly weapon or instrument other than a firearm.' The version of section 245[, subdivision] (a)(1) in effect when defendant committed the assault to which he pleaded . . . in 2013 could not be violated in a way that did not constitute a serious felony under section 1192.7, subdivision (c)(31). Accordingly, sufficient evidence supports the trial court's prior strike conviction finding." (Id. at p. 331, italics added.)
We agree with the rationale and holding of the Second District Court of Appeal in Puerto, supra, 248 Cal.App.4th 325. Here, as in Puerto, Frahs committed an assault with a deadly weapon after the Legislature's 2011 amendment of section 245. Thus, just as in Puerto, Frahs could not have committed the assault "in a way that did not constitute a serious felony under section 1192.7, subdivision (c)(31). Accordingly, sufficient evidence supports the trial court's prior strike conviction finding." (Puerto, supra, 248 Cal.App.4th at p. 331, italics added.)
III
DISPOSITION
The judgment is affirmed.
MOORE, ACTING P. J. WE CONCUR: FYBEL, J. THOMPSON, J.