Opinion
F079193
10-09-2019
THE PEOPLE, Plaintiff and Respondent, v. MARQUETTE LASHON HUDSON, Defendant and Appellant.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 1484556)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Ricardo Cordova, Judge. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Smith, Acting P.J., Meehan, J. and Snauffer, J.
-ooOoo-
Appointed counsel for defendant Marquette Lashon Hudson asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of the right to file a supplemental brief within 30 days of the date of filing of the opening brief, and he filed a response raising no issues and requesting only that his case be reviewed. Finding no arguable error that would result in a disposition more favorable to defendant, we affirm.
DISCUSSION
Defendant was convicted by a jury of mayhem in violation of Penal Code section 203., In a bifurcated proceeding, the trial court found true that defendant suffered a prior conviction for assault with a deadly weapon (§ 245, former subd. (a)(1)), which qualifies as a serious felony within the meaning of the Three Strikes law (§ 667, subds. (a), (d)). The trial court sentenced defendant to the upper term of eight years, doubled to 16 years under the Three Strikes law, plus an additional five years for the prior serious felony conviction enhancement.
All further statutory references are to the Penal Code.
The facts underlying defendant's mayhem conviction are not relevant to this appeal and, therefore, we do not summarize them. The procedural facts are taken from our prior opinion in People v. Hudson (2018) 28 Cal.App.5th 196, 202-203 (Hudson I). --------
Defendant filed a notice of appeal challenging the trial court's finding that he suffered a prior conviction for assault with a deadly weapon.
In Hudson I, we agreed with defendant that the trial court erred. (Hudson I, supra, 28 Cal.App.5th at p. 201.) We explained, "In 1991, when [defendant] pled no contest in the prior case, former section 245[, subdivision ](a)(1) provided: 'Every person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury is punishable by imprisonment in the state prison for two, three or four years ....' Under section 1192.7, subdivision (c)(31), assault with a deadly weapon qualifies as a serious felony and is, in turn, a strike under section 667, subdivisions (d)(1) and (e)(1). [Citation.] Assault with force likely to cause great bodily injury is not a serious felony, and, in turn, is not a strike. [Citation.] Therefore, the application of the prior strike enhancement alleged in the instant information hinged on whether [defendant's] prior conviction under section 245[, subdivision ](a)(1) was for assault with a deadly weapon or assault with force likely to cause great bodily injury." (Id. at p. 203, citing People v. Delgado (2008) 43 Cal.4th 1059, 1065.)
We concluded, in accordance with Descamps v. United States (2013) 570 U.S. 254 and People v. Gallardo (2017) 4 Cal.5th 120, that the trial court erred in relying on the preliminary hearing transcript to support its finding, and we reversed the judgment and remanded the matter to permit the People to demonstrate whether defendant's guilty plea encompassed a relevant admission about the nature of the crime. (Hudson I, supra, 28 Cal.App.5th at pp. 201, 211.) In addition, we directed the trial court to correct the abstract of judgement to reflect that defendant's date of conviction was April 14, 2016, and that he was awarded 243 days of presentence custody credit; and to omit reference to an enhancement term of eight years. (Id. at p. 211.)
On remand, the trial court reviewed the transcript of the February 27, 1991, proceedings during which the information was amended to allege that as to count 2, defendant "assault[ed] [G.M.] with a deadly weapon, to wit: a pipe, and by means of force likely to produce great bodily injury"; and defendant pled no contest to count 2 of the information as amended. Based on review of the plea proceedings transcript, the court found true that defendant was convicted of assault with a deadly weapon.
In addition, after inviting argument in light of the recent amendments to sections 667, subdivision (a), and 1385, pursuant to Senate Bill No. 1393 (2017-2018 Reg. Sess.) ch. 1013, §§ 1-2, effective January 1, 2019, the court declined to exercise its discretion to strike the five-year prior serious felony conviction enhancement. The court then imposed, as before, a total determinate term of 21 years in prison: the upper term of eight years for the mayhem conviction, doubled to 16 years, plus an additional five years for the prior serious felony conviction enhancement.
Defendant filed a timely notice of appeal.
Following an independent review of the record, we conclude that the trial court did not err in finding that defendant pled no contest to assault with a deadly weapon and, therefore, suffered a prior serious felony conviction within the meaning of the Three Strikes law. In addition, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.