Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. SC061445
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendant and appellant Leonard Dwayne Holt appeals the judgment and sentence imposed following his felony conviction by bench trial for carrying a concealed dirk or dagger, in violation of Penal Code section 12020, subd. (a). Appellant contends: (1) that there was insufficient evidence to convict him for concealing a weapon; and, (2) that the trial court erroneously denied a motion to reduce the felony conviction to a misdemeanor. Finding both contentions without merit, we shall affirm.
Further statutory references are to the Penal Code unless otherwise noted.
Facts & Procedural Background
Subsequent to a preliminary hearing, single-count information was filed on July 3, 2006, accusing appellant of carrying concealed upon his person a dirk or dagger, a felony in violation of section 12020, subdivision (a). The information also alleged that appellant was convicted of eleven prior drug-related felonies and that he served five separate terms in state prison and committed an offense resulting in a felony conviction within five years of serving each of those prison terms, within the meaning of section 667.5, subdivision (b). On October 16, 2006, appellant and the People waived their respective rights to a jury trial and agreed to try the matter before the court.
Trial began on October 17, 2006. Detective Saul Lopez of the San Mateo County Sheriff’s Office testified that he was on uniformed vehicle patrol with another officer in East Palo Alto on June 8, 2006, at approximately 9:20 p.m. Lopez noticed an individual he knew as Billy Ray Pratt standing in the driveway of a residence speaking with another person, whom he identified in court as appellant. Lopez pulled up because he knew Pratt was on parole. Still in his vehicle, Lopez turned the patrol vehicle spotlight on the two, who were standing side by side, and asked appellant if he too was on parole. Lopez said appellant was wearing a T-shirt over his jeans, and tennis shoes. Appellant replied that he was on probation. Lopez stepped out of his vehicle and approached. Appellant then stepped in front of Pratt, put his hand into his own left-pant pocket, removed an item, and put his left hand behind his back. Pratt took a step towards appellant’s back, grabbed something from appellant’s hand, then turned and walked into the garage of the residence.
As Lopez was approaching appellant on foot, he did not see anything hanging from appellant’s waist area. Lopez asked appellant for his identification. At this point, Lopez was standing a couple of feet away from appellant. Appellant’s entire person was clearly visible to Lopez, but he did not notice anything suspended from appellant’s waist area. Lopez asked appellant if he had any weapons on his person, and appellant said he did not. Thereupon, Lopez advised appellant he was going to pat search him for weapons. Lopez asked appellant to turn around and place both hands behind his back. When appellant turned around Lopez did not see anything suspended from his waist. As Lopez slid his hand around the right side of appellant’s waist, he felt what he believed to be a knife sheath. Lopez lifted up appellant’s T-shirt and noticed there was a silver knife inside the sheath. Lopez stated that prior to lifting up appellant’s T-shirt, no portion of the knife or the sheath was visible to him. The knife sheath contained a straight, non-folding knife with a blade approximately four inches in length. The sheath was suspended from appellant’s belt by its loop. Lopez confirmed appellant was on parole, placed him under arrest, and he was transported to county jail.
On cross, Lopez stated appellant also wore a key chain, approximately 18 inches long, attached to a belt loop on his pants by a hook. Lopez stated he could see the chain hanging down below appellant’s T-shirt as he approached appellant, but he could not recall how far it was hanging down. The knife was suspended in the sheath on appellant’s right hip. Lopez estimated that the tip of the sheath was five or six inches below appellant’s belt and his long T-shirt covered the sheath.
After a recess, appellant reappeared in court dressed in the clothes he was wearing at the time of his arrest. On redirect, Lopez stated appellant appeared to be about 15-20 pounds heavier than he was at the time of his arrest. On re-cross, Lopez stated that in terms of his dress appellant looked “substantially the same” as he did at the time of his arrest, except that “the shirt appear[s] smaller on his body” due to the weight he had gained. The trial court requested that two measurements be taken: (1) the distance from the top of appellant’s waistline to the hem of his shirt, which was measured at seven inches; and, (2) from the bottom of one of the belt loops on appellant’s pants to the hem of his shirt, which was measured at three inches. The court stated, “I will take judicial notice those are the correct measurements as of today. [¶] . . . [¶] And it simply goes to the weight of the evidence. Not as they were back in June.”
Appellant testified that he presently weighed two hundred and fifty pounds. He stated that since his arrest and throughout his subsequent incarceration he had gained about ten pounds. At the close of evidence, the court told the parties to focus in closing argument on the question of whether the knife and sheath were “openly suspended” from appellant’s waist and gave them two weeks to research and brief the issue. Lastly, the court asked for measurements of the knife and sheath “[j]ust for the sake of having a complete record.” The knife, including the blade and handle, measured seven inches. The length of the sheath was measured at seven-and-a-half inches, and the bottom of the sheath’s belt loop to the bottom of the sheath was measured at five-and-a-quarter inches, and the parties so stipulated.
At a subsequent hearing on November 3, 2006, the court heard argument from counsel before delivering its verdict that appellant was guilty of a violation of section 12020. After the court delivered its verdict, defense counsel asked the court to reduce the offense to a misdemeanor, pursuant to section 17. The court stated that “[i]n light of the extensive criminal record of the Defendant, I’m not going to grant the motion under Penal Code Section 17.” Thereafter an issue arose over the applicability of section 667.5 to certain of appellant’s prior offenses, and the court continued the matter to allow counsel to research the issue.
On December 15, 2006, the People filed a memorandum on this issue asserting that appellant was subject to being sentenced under section 667.5, subd. (b) because he has not remained free from prison custody for a period of five years. Appellant did not file a memorandum in opposition, and the issue was not discussed at all at the next scheduled hearing in January 2007. Subsequently, appellant was sentenced to an additional year in state prison pursuant to section 667.5, subd. (b). (See ante.)
At a hearing on January 26, 2007, defense counsel contested the validity of certain prison priors attributed to appellant. The prosecutor stated: “I will submit on — for sake of argument, I will submit on the fact that [defense counsel] is conceding the point that there are three valid priors.” Defense counsel affirmed that “[t]he ’92, ’94 and ’97 have been proven by what’s been submitted to you.” The trial court stated: “Then the Court will find proof beyond a reasonable doubt that those three priors are valid and true with regard to the [section] 1203(e)(4) argument by [defense counsel].” On February 27, 2007, the court denied probation and sentenced appellant to the low term of 16 months in state prison, with a one-year enhancement pursuant to section 667.5, subdivision (b), for a total term of 28 months. Notice of appeal was timely filed on February 27, 2007.
Section 1203, subdivision (e)(4) states: “Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons: [¶] . . . [¶] (4) Any person who has been previously convicted twice in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony.”
Discussion
A. Sufficiency of the Evidence
Appellant contends that because there was insufficient evidence to establish that he was carrying a concealed weapon as defined by section 12020, subdivision (d), his conviction violated his federal constitutional right to due process. We disagree because we conclude that appellant’s conviction is supported by substantial evidence.
(1)
In reviewing a claim of insufficiency of the evidence, we determine “ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citations.] We examine the record to determine ‘whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] Further, ‘the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.]” (People v. Moon (2005) 37 Cal.4th 1, 22.) Thus, “[a]lthough we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. (Citations.)” (People v. Jones (1990) 51 Cal.3d 294, 314.) And so “if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]” (Ibid.)
Section 12020 prohibits the manufacture, import, sale, supply or possession of certain weapons and explosives. Amongst its various prohibitions, section 12020 makes it an offense for a person to carry “concealed upon his or her person any dirk or dagger.” (§ 12020, subd. (a)(4).) Section 12020, subdivision (d) (“subdivision (d)”), however, also provides a complete defense to the offense thus defined, for it states: “Knives carried in sheaths which are worn openly suspended from the waist of the wearer are not concealed within the meaning of this section.” (§ 12020, subd. (d), italics added.)
It is this defense upon which appellant bases his claim of insufficiency of the evidence. His position is that he is entitled to a complete defense under section 12020, subdivision (d), even if his knife-sheath was partially, or even fully, covered by outer clothing. Indeed, appellant asserts that “[t]he question of whether [appellant’s] shirt covered, partially covered, or fully revealed the sheath is simply irrelevant”—rather, according to appellant, “[i]f a person is wearing a knife in a sheath that is attached to his belt,” he is entitled to the complete defense provided by subdivision (d).
Appellant bases his position principally on In re Alfredo S. (1984) 162 Cal.App.3d 800 (Alfredo S.), which he asserts stands for the proposition that “if a knife is in a sheath and the sheath is worn on a belt loop,” it matters not whether the sheath is concealed by defendant’s clothing.
We read Alfredo S. differently, and we conclude it does not control here. In Alfredo S., the juvenile court found that a minor possessed a concealed dirk or dagger, and the minor appealed. The evidence established that a deputy “saw the bottom one inch of a knife sheath hanging beneath appellant’s sweatshirt, then watched as appellant attempted to conceal the sheath . . . by pulling his sweatshirt down to cover it.” (Alfredo S., supra, 162 Cal.App.3d at p. 801.) At the hearing, however, the minor testified that “he was wearing his sweatshirt folded up so that the sheath was entirely exposed to view.” (Ibid.) The trial court did not resolve this conflicting testimony on the basis of a credibility determination: rather, the court stated, “ ‘I am going to remove this from the credibility gap. Court makes the finding as follows: Due to the nature of the sheath in which a knife was found, the Court makes the specific finding that even if that were worn on a belt with no shirt on whatsoever, that that would be a concealed knife. The Court thereby finds Count I [carrying concealed dirk or dagger to be true under that premise.’ ” (Id. at pp. 801-802.)
On review, the appellate court stated: “Appellant’s contention that the evidence is insufficient to support the finding that the knife was ‘concealed’ solely because of the nature of the sheath is meritorious.” (Alfredo S., supra, 162 Cal.App.3d at p. 802 [italics added].) The court added that it had “examined the case in which appellant’s knife was carried, and there is nothing about it which suggests that it is something other than an ordinary, commercially available knife sheath.” (Ibid.) Further, “Carried openly suspended from the waist in an ordinary sheath, the knife was not ‘concealed’ within the meaning of Penal Code section 12020, subdivision (a). Under such circumstances, the finding that appellant possessed a ‘concealed dirk or dagger’ must be reversed. . . .” (Id.)
In sum, the trial court in Alfredo S. concluded that the holster for the knife was not a true “sheath,” therefore a subdivision (d) defense was unavailable. The appellate court thought otherwise, reversing on the grounds that the holster was a true “sheath” and subdivision (d) applied because the knife was “[c]arried openly suspended from the waist in an ordinary sheath. . . .” (Alfredo S., supra, 162 Cal.App.3d at p. 802.)
When Alfredo S. was decided the subdivision (d) defense was codified at section 12020, subdivision (e), but the wording was exactly the same. (Alfredo S., supra, 162 Cal.App.3d at p. 802.)
(2)
However, we must resolve a different question than the one faced by the Alfredo S. court. Here, unlike Alfredo S., the court below did not conclude the holster of the knife was not a true sheath — the nature of the sheath was never at issue in this case. Moreover, unlike Alfredo S., the trial court did not conclude that the sheathed knife constituted a “concealed” knife even if it was worn “on a belt with no shirt on whatsoever.” (Alfredo S., supra, 162 Cal.App.3d at p. 802.) Rather, the facts here squarely present a question not addressed in Alfredo S.: Where a person wears a knife carried in a sheath suspended from his or her waist, is that person entitled to a defense under section 12020, subdivision (d), if the knife and sheath are covered or partially covered by a layer of outer clothing? The answer to this question lies in the plain language of the statute.
(a)
“ ‘Our role in construing a statute is to ascertain the Legislature’s intent so as to effectuate the purpose of the law. [W]e begin with the words of a statute and give these words their ordinary meaning. If the statutory language is clear and unambiguous, then we need go no further. If, however, the language supports more than one reasonable construction, we may consider a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part. Using these extrinsic aids, we select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.’ ” (People v. Hagedorn (2005) 127 Cal.App.4th 734, 741 [internal citations and quotation marks omitted]; People v. Morris (1988) 46 Cal.3d 1, 15, disapproved on other grounds by In re Sassounian (1995) 9 Cal.4th 535, 543 [“courts must give effect to statutes according to the ordinary import of the language used in framing them”]; § 4 (provisions of penal code “are to be construed according to the fair import of their terms, with a view to effect its objects and promote justice”].) Nor do these well-established principles of statutory construction conflict in any way with the rule of lenity in criminal cases because “ ‘ [t]he rule [of lenity] applies only if the court can do no more than guess what the legislative body intended; there must be an egregious ambiguity and uncertainty to justify invoking the rule.’ (Citation.) . . . ‘The rule of statutory interpretation that ambiguous penal statutes are construed in favor of defendants is inapplicable unless two reasonable interpretations of the same provision stand in relative equipoise, i.e., that resolution of the statute’s ambiguities in a convincing manner is impracticable.’ [citation omitted.] [¶] Thus, although true ambiguities are resolved in a defendant’s favor, an appellate court should not strain to interpret a penal statute in defendant’s favor if it can fairly discern a contrary legislative intent.” (People v. Avery (2002) 27 Cal.4th 49, 58.)
The plain language of the statute in question here provides that it is an offense for a person to carry “concealed upon his or her person any dirk or dagger.” (§ 12020, subd. (a)(4).) From this language, we discern that the evil the Legislature sought to combat is not the simple possession of a dirk or dagger, but its concealment about the person. Case law reflects this, because courts have consistently held that complete concealment is not necessary to a violation of the statute—“[o]nly substantial concealment is required.” (People v. Wharton (1992) 5 Cal.App.4th 72, 75 [evidence of concealment sufficient even where “one and one-half to two inches of the [knife] blade were protruding from defendant’s pocket”]; People v. Fuentes (1976) 64 Cal.App.3d 953, 955 [“The dirk was in [appellant’s] waistband. The mere fact that some portion of the handle may have been visible makes it no less a concealed weapon. A defendant need not be totally successful in concealing a dirk to be guilty of violation of Penal Code section 12020, subdivision (a).”].)
(b)
Moreover, the Legislature did not make any concession to the evil of concealment by allowing a defense to section 12020, subdivision (a) where the knife is carried in a sheath which is “worn openly suspended from the waist of the wearer.” (§ 12020, subd. (d) [italics added].) Rather, this subsection also addresses the evil of concealment by requiring that a knife carried in a sheath must be worn “openly” suspended from the waist. Given that the aim of the section 12020, subdivision (a)(4) is to prevent the concealment of dirks or daggers about the person, we think it obvious that in the context of a defense to concealment, “worn openly suspended from the waist” means that the sheathed knife must be worn suspended from the waist so that it is visible, in plain sight, exposed, and not concealed, fully or partly, by outer clothing of any kind, and we so hold. (See Webster’s 3d New Intern. Dict. (1970) p. 1580 [‘openly’ means “in an open manner: freely and without concealment”]; Merriam-Webster Online Dictionary (http://www.merriam-webster.com) [‘openly’ means “completely free from concealment: exposed to general view or knowledge”]; Oxford English Dictionary Online (http://dictionary.oed.com) [‘openly’ means “without concealment; so that all may see, hear, or take notice; in public, publicly”].) Appellant’s contrary interpretation — that subsection (d) applies and there is no concealment where a sheathed knife is worn suspended from the waist of the wearer but is covered by outer clothing — fails to acknowledge the aim of section 12020, subdivision (a)(4) and simply ignores the “worn openly” requirement which is central to subsection (d)’s negation of concealment. (Cf. People v. Blick (2007) 153 Cal.App.4th 759, 772 [noting that respondent’s interpretation of the statute failed to recognize that the aim of the section was to criminalize acts that attempt to defraud insurers and failed to consider the subsection in the context of the section as a whole]; People v. Allen (1993) 20 Cal.App.4th 846, 851 [construing phrase “as a whole; as an integral part of the whole code section [citations]; and in relation to other statutes on the same subject, so as to harmonize the whole law”].)
(3)
With that issue of statutory interpretation resolved, together with undisputed facts that appellant wore the sheathed knife partly concealed under a layer of outer clothing, it is clear that defendant is not entitled to the complete defense provided under the statute for sheathed knifes “worn openly suspended from the waist of the wearer.” (§ 12020, subd. (d), italics added.) But even if defendant is not entitled to a defense under section 12020, subdivision (d), we must still “ ‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt’ ” of violating section 12020, subdivision (a) by carrying a dirk or dagger concealed upon his person. (People v. Welch (1999) 20 Cal.4th 701, 758 [citations omitted].)
We conduct our review bearing in mind that complete concealment of such a dirk or dagger is not required under the statute—“[o]nly substantial concealment is required.” (People v. Wharton, supra, 5 Cal.App.4th 72, 75 [evidence of concealment sufficient even where “one and one-half to two inches of the [knife] blade were protruding from defendant’s pocket”]; accord People v. Fuentes, supra, 64 Cal.App.3d 953, 955 [“The dirk was in [appellant’s] waistband. The mere fact that some portion of the handle may have been visible makes it no less a concealed weapon.”].) The trial court here found “substantial concealment” because it declared defendant “guilty of a violation of 12020” on the grounds that the facts before it “cannot be reconciled with [] People vs. Wharton and People vs. Fuentes . . . .” The trial court’s verdict of guilt is amply supported by substantial record evidence.
As noted above, Wharton held that “[o]nly substantial concealment is required.” (Wharton, supra, 5 Cal.App.4th at p. 75, citing People v. Fuentes, supra, 64 Cal.App.3d at p. 955.) Thus, we are satisfied the trial court applied the correct legal standard and, given its citation to the proper legal authorities, we place no significance on the trial court’s prior statement that the “knife and sheath were . . . partially concealed,” where it might better have used the term “substantially” concealed.
In the first place, Officer Lopez’s testimony alone provides ample evidence of substantial concealment. Officer Lopez testified that as he approached appellant on foot, he did not see anything hanging from appellant’s waist area. Lopez asked appellant for his identification. At this point, Lopez was standing a couple of feet away from appellant. Appellant’s entire person was clearly visible to Lopez, but he did not notice anything suspended from appellant’s waist area. Lopez asked appellant if he had any weapons on his person, and appellant said he did not. Thereupon, Lopez advised appellant he was going to pat search him for weapons. Lopez asked appellant to turn around place both hands behind his back. When appellant turned around Lopez did not see anything suspended from his waist. As Lopez slid his hand around the right side of appellant’s waist, he felt what he believed to be a knife sheath. Lopez lifted up appellant’s T-shirt and noticed there was a silver knife inside the sheath. Lopez stated that prior to lifting up appellant’s T-shirt, no portion of the knife or the sheath was visible to him. As stated above, this testimony alone provides ample evidence to support the trial court’s finding of substantial concealment.
In addition, the other evidence introduced at trial via defendant’s reconstruction of his appearance at the time of the offense also supports a finding of substantial concealment. Data gathered at trial via the reconstruction measured the distance from the top of appellant’s waistline to the hem of his shirt, the distance from the bottom of one of the belt loops on appellant’s pants to the hem of his shirt (neither of which, incidentally, was adjusted to account for defendant’s weight gain or Lopez’s testimony that the shirt “appeared smaller on [defendant’s] body”), the length of the knife, the length of the sheath, and the bottom of the belt loop on the sheath to the tip of the sheath suspended from appellant’s waist. Under defense counsel’s own best-case estimation, these measurements mean that “an inch-and-a-quarter, or perhaps more, was exposed below the shirt.” This is similar to the facts in Wharton, supra, where the court of appeal concluded that evidence of concealment was sufficient where “jury was apprised that only one and one-half to two inches of the blade were protruding from defendant’s pocket.” (Wharton, supra, 5 Cal.App.4th at p. 75 [where knife was seven and three-eights inches long].) In sum, the judgment of the trial court that appellant carried concealed about his person a dirk or dagger is supported by substantial evidence.
Appellant also asserts that the trial court’s “express finding” that appellant had attempted to comply with the statute translates into insufficient evidence of mens rea. In announcing its judgment, the trial court stated: “I’m going to find the Defendant guilty of a violation of 12020. It is clearly understood that he, apparently, made an attempt to comply with the provisions of that statute but did not do so. And, therefore, the Court finds him guilty of that charge.” Contrary to appellant’s characterization, we conclude the court’s ambiguous and puzzling remark is of no legal significance to the judgment announced and in that regard did not constitute an “express finding” regarding appellant’s state of mind. Moreover, section 12020, subdivision (a)(4) is a general intent crime. (People v. Rubalcava (2000) 23 Cal.4th 322, 330-331 [“the intent to use the concealed instrument as a stabbing instrument is not an element of the crime of carrying a concealed dirk or dagger.”].) However, for a conviction under section 12020, “a defendant must still have the requisite guilty mind: that is, the defendant must knowingly and intentionally carry concealed upon his or her person an instrument ‘that is capable of ready use as a stabbing weapon.’ ” (Id. at p. 332.) Here, there is ample evidence of the requisite mens rea. When Officer Lopez first contacted appellant, appellant denied he had any weapons on him. After appellant was arrested, however, he told the police that he was shot recently and had the knife for self-defense.
B. Section 17
The exercise of discretion to reduce a felony offense to a misdemeanor offense pursuant to section 17, subdivision (b), is “an intensely fact-bound inquiry taking all relevant factors, including the defendant’s criminal past and public safety, into due consideration.” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 981-982.) Factors for consideration include “ ‘the nature and circumstances of the offense, the defendant’s appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.’ ” (Id. at p. 978.) We review the trial court’s decision pursuant to section 17, subdivision (b), for an abuse of discretion. (Id. at p. 977.) “ ‘The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ ” (Id. at pp. 977-978.)
The trial court denied appellant’s section 17 request to reduce his conviction from a felony to a misdemeanor on account of his lengthy criminal history. The trial court stated: “Well, in light of the extensive criminal record of the Defendant, I’m not going to grant the motion under Penal Code section 17.” Before ruling, however, the court heard argument from counsel. Defense counsel conceded that “[appellant’s] record is bad. . . . [¶] We all know he has a record. We all know that it is not a good record. We all know he was on parole.” Nevertheless, counsel asked the court to exercise its discretion in appellant’s favor because appellant’s conduct was not egregious: “It is a misdemeanor violation. He wasn’t out on the street. He wasn’t doing anything. He was in his own front yard.” In opposition, the prosecutor noted appellant was on parole at the time of the present offense; that he had a criminal history dating back to 1987 involving multiple, mainly drug-related, offenses. In addition, the prosecutor stated appellant had a prior 12020 misdemeanor conviction, which defense counsel stated was “in the 80’s” and involved, he was informed by appellant, “a baseball bat.” The court also noted that appellant had denied having any weapons before he was searched. In addition, People’s exhibits 1 through 6, which were received into evidence at trial, document appellant’s criminal history of multiple drug-related convictions dating from September 1987 to May 1997. Based on the evidence before it, the trial court’s section 17 ruling cannot be deemed irrational.
Appellant, however, characterizes the trial court’s ruling as an abuse of discretion because subsequent evidence failed to show his criminal history was as extensive as the trial court believed. For example, appellant asserts that “the People could only prove that [appellant] was convicted of three offenses that carried prison terms.” Appellant’s reading of the record is highly selective in this regard.
True, at a hearing subsequent to the denial of the section 17 motion, defense counsel contested the validity of certain priors attributed to appellant. However, for purposes of establishing the applicability of section 1203, subdivision (e)(4), the prosecutor simply submitted on the basis of defense counsel’s own concession “that there are three valid priors.” Whereupon the trial court found “that those priors . . . are true and valid beyond a reasonable doubt.” It is also true that after the court had ruled on the section 17 motion the parties subsequently disputed which of appellant’s convictions were prison priors. Nevertheless, these events subsequent to the court’s section 17 ruling do not mean that the court abused its discretion by basing its ruling on appellant’s lengthy criminal record. Indeed, appellant’s section 969b packet, which was also submitted into evidence subsequent to the court’s section 17 ruling, documents appellant’s criminal history chronologically from 1992 through June 2006. In sum, we conclude the trial court’s section 17 ruling was, to put it mildly, not an abuse of discretion.
Certified copies of abstracts of judgment, fingerprint card and photograph, and chronological history on file with the California Department of Corrections, and provided to the San Mateo County District Attorney’s Office by the Custodian of Records of the Division of Adult Parole Operations pursuant to section 969b, which provides: “[T]he records or copies of records of any state penitentiary . . . in which such person has been imprisoned, when such records or copies thereof have been certified by the official custodian of such records, may be introduced” as evidence of a person’s prison priors.
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P. J., Pollak, J.