Opinion
B224518
10-04-2011
THE PEOPLE, Plaintiff and Respondent, v. ODIS HENDRIX, Defendant and Appellant.
Law Offices of Pamela J. Voich and Pamela J. Voich, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. VA110006)
APPEAL from a judgment of the Superior Court of Los Angeles County, Daniel S. Murphy, Judge. Affirmed.
Law Offices of Pamela J. Voich and Pamela J. Voich, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Odis Hendrix of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), and in a bifurcated proceeding the trial court found true an allegation that defendant had suffered a prior strike under the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Defendant admitted five prior prison terms (Pen. Code, § 667.5, subd. (b)), and was sentenced to six years in state prison (double the upper term, with the prior prison terms stricken). He appeals from the judgment of conviction. We affirm.
FACTUAL BACKGROUND
On the night of March 31, 2009, Los Angeles County Sheriff Deputies Daniel Anderson and Lucy Chavez detained defendant as he was walking on the center median of 89th Street. The officers believed he might be under the influence, and instructed him to place his hands on the hood of their patrol vehicle. Acting nervous and fidgety, defendant kept trying to reach into a pants pocket. When Officer Anderson asked if he had something in his pocket the officers should know about, defendant replied that he had a rock that he had bought for $5. Officer Anderson recovered an off-white rock from defendant's pants pocket, later analyzed and determined to be cocaine base weighing approximately . 12 grams.
DISCUSSION
Prior Strike
Defendant concedes that the evidence presented to the trial court in the bifurcated proceeding on his prior strike conviction proved that he had been convicted in June 2004 of violating Penal Code section 288, subdivision (a). He contends, however, that this crime is an alternative felony/misdemeanor (a so-called "wobbler"), that is, an offense punishable alternatively by imprisonment in state prison or in county jail. He further asserts that the record shows that he was not sentenced to state prison for this crime, but rather that he was placed on probation for three years on condition that he serve 210 days in county jail, and that he successfully completed probation. According to defendant, because he was not sentenced to prison, the sentence imposed was a misdemeanor sentence, and therefore the offense became a misdemeanor as a matter of law. (See People v. Trausch (1995) 36 Cal.App.4th 1239, 1246 ["once the court has imposed a misdemeanor sentence [for an alternative felony/misdemeanor], the offense becomes a misdemeanor 'for all purposes'"].) As such, under defendant's logic, the conviction does not qualify as a strike.
All further section references are to the Penal Code.
Defendant is mistaken. A prior conviction qualifies under the Three Strikes law if it is for violent felony as defined in Penal Code section 667.5, subdivision (c), or for a serious felony as defined in section 1192.7, subdivision (c). A violation of section 288, subdivision (a), is both a serious and a violent felony. (§§ 667.5, subd. (c)(6) [listing "Lewd or lascivious act as defined in subdivision (a) . . . of Section 288"]; 1192.7, subd. (c)(6) [listing "lewd or lascivious act on a child under 14 years of age"].)
A violation of section 288, subdivision (a), is a straight felony, not an alternative felony/ misdemeanor. That subdivision provides in relevant part: "[A]ny person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years." (Italics added.) Thus, defendant's conviction of violating section 288, subdivision (a), is necessarily a strike.
Despite the language of subdivision (a), defendant asserts that subdivision (c)(1) of section 288 makes subdivision (a) an alternative felony/misdemeanor. But subdivision (c)(1), by its terms, prescribes a distinct offense. Subdivision (c)(1) provides in relevant part that "[a]ny person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year." (Italics added.) Thus, subdivision (c)(1) creates a wobbler offense when the victim is 14 or 15 years old and the defendant is at least 10 years older. Defendant was not convicted of that crime.
Defendant is also mistaken in asserting that the record shows that he was not sentenced to state prison for violating section 288, subdivision (a). In the bifurcated proceeding, the trial court took judicial notice of the case file regarding the section 288, subdivision (a) conviction. Defendant has failed to augment the record on appeal to include the file. However, in the trial court, the prosecutor represented that the relevant minute order in the file showed that defendant had "suffered a felony conviction for violation of . . . 288 . . . and he was sentenced to probation, I believe, six years suspended prison." As articulated by the trial court, "The court takes judicial notice of the minute order . . . wherein [defendant] was sentenced to six years state prison; that was stayed . . . [a]nd he was placed on probation."
Thus, the record before us suggests that defendant was sentenced to the midterm of six years for violating section 288, subdivision (a), but that execution of the sentence was suspended and he was then placed on probation. Because the court imposed a state prison sentence but suspended its execution pending a term of probation, it cannot be said that defendant received a non-prison sentence. (Cf. People v. Howard (1997) 16 Cal.4th 1081, 1088, 1095 [when trial court imposes state prison sentence, then suspends execution pursuant to grant of probation, court cannot change that sentence on violation of probation].)
Further, regardless of whether defendant was placed on probation - with imposition of sentence suspended, or with execution of an imposed sentence suspended the Three Strikes law applies to a violation of section 288, subdivision (a). Section 667, subdivision (d)(1) provides in relevant part that "[n]one of the following dispositions shall affect the determination that a prior conviction is a prior felony for purposes of subdivisions (b) to (i), inclusive: [¶] (A) The suspension of imposition ofjudgment or sentence. [¶] (B) The stay of execution of sentence." (See also § 1170.12, subd. (b)(1) [same].)
In short, the trial court properly found that defendant's prior conviction of violating section 288, subdivision (a), qualified as a strike.
Pitchess Motion
Defendant requests that we review the transcript of the in camera hearing conducted by the trial court regarding discovery requested in his Pitchess motion. We have done so. The trial court complied with the procedure set forth in People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229. We find no abuse of discretion in the trial court's conclusion that there was no discoverable information.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
EPSTEIN, P. J.
MANELLA, J.