Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Super. Ct. No. BA219176, Los Angeles County, Paul M. Enright, Judge.
Keith R. Marchand, in pro. per.; Sally P. Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon, Lawrence M. Daniels, Supervising Deputy Attorneys General, Sharlene A. Honnaka, and Kristofer Jorstad, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION ON REMAND
PERREN, J.
In 2003, Keith Rene Marchand was convicted for unlawfully driving and taking a vehicle, and evading an officer in disregard for the safety of others. (Veh. Code, §§ 2800.2, sub d. (a), 10851, sub d. (a).) The trial court sentenced him to the upper term because, among other things, he had a record of prior offenses, including at least two theft convictions, receiving stolen property and drug convictions. Marchand admitted another prior felony conviction, for robbery in Nevada.
In his first appeal (B165687), we affirmed the conviction, but remanded the matter for a determination of whether the Nevada robbery conviction qualifies as a "strike" under California's Three Strikes law. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The trial court found that the Nevada robbery does qualify as a strike and resentenced Marchand accordingly. Marchand appealed.
In this appeal, Marchand challenged the trial court's ruling that the Nevada robbery qualifies as a prior felony conviction in California. (§ 667.) He pointed out that the crime of robbery in Nevada does not require three of the elements necessary to be convicted of robbery in California: 1) specific intent to permanently deprive the victim of his property, 2) creating immediate fear in the victim, and 3) as portation of the goods. We concluded that substantial evidence supports the trial court's findings.
Marchand also contended that the court improperly sentenced him to the upper term relying on facts not found by a jury. The United States Supreme Court granted Marchand's petition for writ of certiorari, vacated the judgment, and remanded the case for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856], overruling People v. Black (2005) 35 Cal.4th 1238 in part. We again affirmed the conviction, but remanded for resentencing in light of Cunningham.
On July 18, 2007, the California Supreme Court granted Marchand's petition for review. On September 12, 2007, our Supreme Court transferred the cause back to this court with directions to vacate our previous decision and to reconsider the matter in light of People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825. (Cal. Rules of Court, rule 8.528(d).)
After reconsidering the matter in light of Black II and Sandoval, we issue this new opinion. We conclude that the trial court did not err by imposing the upper term because it is based on the aggravating circumstance of appellant's recidivism. (Black II, supra, 41 Cal.4th at pp. 812, 816, 818-819.) Accordingly, we reaffirm his conviction and sentence.
FACTS AND PROCEDURAL HISTORY
Marchand was charged with various Vehicle Code offenses, and the special allegation he suffered a "strike" within the meaning of the Three Strikes law due to a prior Nevada robbery conviction. Marchand was convicted of the Vehicle Code offenses and admitted he suffered the strike. The trial court found a factual basis for the admission and sentenced Marchand to six years – double the upper term for evading an officer – based on the prior strike conviction. (Pen. Code, § 667, subds. (b)-(i), esp. (e)(1).)
On appeal, we affirmed his conviction on the Vehicle Code offenses, but remanded the matter to the trial court to determine whether the prior Nevada robbery conviction would constitute robbery in California so as to support sentencing based on the admitted strike.
Our review of Marchand's criminal history disclosed that Marchand failed to appear at his March 4, 1992, arraignment on the Nevada robbery charge. A bench warrant was issued for his arrest. On November 13, 1995, Marchand was arrested in Los Angeles and extradited to Nevada. Marchand pled guilty "to the crime of ROBBERY (Felony), committed on the 27th day of January, 1992, in violation of NRS 200.380 . . . ." The Nevada court sentenced him to 5 years in prison, ordered him to pay restitution in the amount of $2,878.35, and entered judgment.
The trial court in the present matter considered the certified record of the Nevada conviction, including the criminal complaint, the bench warrant, and the judgment of conviction for the robbery. Based on these documents, the trial court concluded that Marchand's conduct would constitute the crime of robbery in California. The court found that he had the specific intent at the time of the robbery to permanently deprive the victim of the money he took by threat of force. The court relied on the fact that he fled Nevada and several years passed before he was arrested on the arrest warrant in Los Angeles. Furthermore, the court noted, after he pled guilty to the robbery, the Nevada court ordered him to pay restitution.
DISCUSSION
"A prior conviction for purposes of the three strikes law includes 'A conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison. A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense that includes all of the elements of the particular felony as defined in subdivision (c) of [Penal Code] Section 667.5 or subdivision (c) of [Penal Code] Section 1192.7.'" (People v. Laino (2004) 32 Cal.4th 878, 895; People v. Avery (2002) 27 Cal.4th 49, 53; Pen. Code, §§ 667, sub d. (d)(2), 1192.7, sub d. (c).) Penal Code section 667.5, subdivision (c)(9) provides, in pertinent part, that for the purposes of the section a "'violent felony' shall mean any of the following: . . . [¶] (9) Any robbery."
In California, "[r]obbery is defined as the taking of personal property of some value, however slight, from a person or the person's immediate presence by means of force or fear, with the intent to permanently deprive the person of the property." (People v. Marshall (1997) 15 Cal.4th 1, 34, italics added; People v. Harris (1994) 9 Cal.4th 407, 415; Pen. Code, § 211.) At the time of Marchand's conviction, the Nevada statute read: "[r]obbery is the unlawful taking of personal property from the person of another, or in his presence, against his will, by means of force or violence or fear of injury, immediate or future, to his person or property, or the person or property of a member of his family, or of anyone in his company at the time of the robbery. A taking is by means of force or fear if force or fear is used . . . ." (Nev. Stats., § 200.380, sub d. (1), italics added; Litteral v. State (1981) 97 Nev. 503, 505-508 [634 P.2d 1226], disapproved on other grounds in Talancon v. State (1986) 102 Nev. 294, 301 [721 P.2d 764].)
Marchand contends the Nevada conviction for robbery does not qualify as a strike in California because Nevada's robbery statute does not require three of the elements needed to sustain a robbery conviction in California: 1) fear of present harm, 2) as portation of the property taken, and 3) specific intent to permanently deprive the victim of the property taken. (Litteral v. State, supra, 634 P.2d 1226.)
In determining whether a prior foreign conviction constitutes a strike, the trial court is not limited to matters necessarily established by the prior judgment, or to the least adjudicated elements of the crime. Instead, the court may review the entire record to ascertain whether the defendant's conduct in committing the foreign crime would qualify as a strike conviction in California, regardless of the differences between the statutory definitions of the crime. (People v. Woodell (1998) 17 Cal.4th 448, 452-455; accord, People v. Avery, supra, 27 Cal.4th at p. 53; People v. Riel (2000) 22 Cal.4th 1153, 1204-1205; Pen. Code, §§ 667, sub d. (d)(2), 1170.12, sub d. (b)(2); and see People v. Guerrero (1988) 44 Cal.3d 343, 355 [burglary of a residence]; Evid. Code, §§ 452, sub d. (d), 453 [on judicial notice of official court records].) In doing so, the court may consider the allegations set forth in the foreign accusatory pleading and the defendant's plea of guilty or nolo contendere to those charges. (Guerrero, supra, at pp. 345, 356; People v. Laino, supra, 32 Cal.4th at pp. 895-896 [guilty plea constitutes a conviction].)
The trial court found that because Marchand absconded for three years, pled guilty to the Nevada robbery, and was ordered to pay restitution, there is no reasonable doubt that he had the specific intent to permanently deprive the victim of his money at the time he committed the offense, and that he did so by force or fear. (See People v. Marshall, supra, 15 Cal.4th at p. 34 [requisite intent at time of theft].) The court was also "convinced beyond a reasonable doubt that when that property was taken, it was taken to permanently deprive [the victim of his property.]" (People v. Avery, supra, 27 Cal.4th at pp. 54-57; and see People v. Riel, supra, 22 Cal.4th at pp. 1205-1206.)
Substantial evidence supports these factual findings. Marchand pled guilty to the robbery committed on January 27, 1992. The only charge to which his plea relates is count V which states, in pertinent part, that he "did, on or about January 27, 1992, then and there willfully, unlawfully, and feloniously take personal property, to-wit: lawful money of the United States, from the person of JEFFREY JOHNSRUDE, or in his presence, . . . said Defendant using a deadly weapon, to-wit: a firearm, during the commission of said crime." (People v. Guerrero, supra, 44 Cal.3d at pp. 345, 356 [courts may consider entire record including foreign accusatory pleading and defendant's plea]; see also People v. Blackburn (1999) 72 Cal.App.4th 1520, 1526-1527, 1531.) Thus, the record establishes that Marchand committed the crime by the present use of force or fear of force. The Nevada court's minutes and its bench warrant of March 10, 1992, show that nearly three years elapsed between his arraignment on the charges and his arrest on the warrant in Los Angeles on November 13, 1995. Marchand's act of absconding from the state of Nevada establishes both as portation of the property taken, and his specific intent to permanently deprive the victim of that property. (See People v. Avery, supra, 27 Cal.4th at pp. 54-57.) After he was extradited, Marchand pled guilty to one count of robbery, and the court ordered restitution.
We conclude that the Nevada conviction constitutes a strike for purposes of sentencing under the Three Strikes law. (See People v. Woodell, supra, 17 Cal.4th at pp. 460-461 [appellate opinion logically showed what trial court found as facts, based on court documents, to establish personal use of a weapon, the basis for a qualifying theory to support a strike].)
Upper Term Sentence
Marchand contends the trial court committed reversible error by imposing an upper term sentence based on aggravating sentencing factors which were not tried by a jury, in violation of his Sixth Amendment right to jury trial and due process. When sentence was first imposed in this case, California law provided that the presumptive sentence was the middle term. Generally, Marchand had the right to have a jury decide aggravating sentencing factors before the trial court could impose an upper term sentence. (Cunningham v. California, supra, 127 S.Ct. 856.) There are exceptions to this rule: "a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury's verdict." (People v. Sandoval, supra, 41 Cal.4th at p. 836.) An aggravating circumstance renders a defendant eligible for the upper term sentence if it was based on the defendant's prior criminal history. (Black II, supra, 41 Cal.4th at pp. 816, 818.) Thus, "the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction." (Sandoval, supra, at pp. 836-837.)
As the Sandoval court noted, California's sentencing procedures have been revised so that trial courts on remand now have discretion to decide whether to impose a lower, middle or upper term. (People v. Sandoval, supra, 41 Cal.4th at p. 832.)
In this case, Marchand admitted the prior felony conviction for robbery in Nevada, and that he suffered other prior convictions. Based on his recidivism, the trial court did not err in resentencing Marchand to the upper term. The trial court's reliance on additional aggravating circumstances does not violate appellant's right to a jury trial. Furthermore, the trial court had discretion to impose the upper term.
Accordingly, the sentence and judgment are affirmed.
We concur: GILBERT, P. J., YEGAN, J.