Opinion
C089144
06-26-2020
THE PEOPLE, Plaintiff and Respondent, v. SOUKSAVANH PHETVONGKHAM, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17FE005490)
After a jury found defendant Souksavanh Phetvongkham guilty of murder, a trial court found true an allegation that he had a prior conviction in the State of Texas for a serious felony. Defendant challenges that true finding on appeal and argues that it was supported by insufficient evidence. We will reverse the trial court's true finding as to the prior conviction and remand the matter for further proceedings.
BACKGROUND
Defendant stabbed and killed the victim after the two had a disagreement. A jury found defendant guilty of murder, and defendant waived his right to a jury trial on a prior strike allegation concerning a 1992 conviction for aggravated assault in Texas.
To support the allegation, the prosecution entered a packet of documents into evidence, which included a plea agreement, an order showing a judgment and conditions of probation, and copies of two Texas statutes. The plea agreement reads, in relevant part: "I, SOUKSAVANH PHETVONGKHAM, hereafter styled the Defendant, . . . on or about JULY 6, 1992, did then and there unlawfully intentionally and knowingly cause serious bodily injury to [J.S.] by striking [J.S.] with a deadly weapon, namely, a glass. [¶] . . . [¶] I understand the above allegations and I confess that they are true . . . ."
At the bench trial on the prior conviction, the parties stipulated that defendant was the individual identified in the documents. Defense counsel argued, however, that the statement in the plea agreement did not show that defendant had "personally struck that person with the weapon named in that document" and that he may merely have aided and abetted the assault. (Italics added.) After hearing from the prosecution, the court found the prior conviction allegation true, saying, "The fact that it is, I suppose, possible that there were two people holding onto this glass at the same time, while I can't say that couldn't have happened, I find it so unlikely that I believe that the burden of beyond a reasonable doubt would be satisfied by this recitation of the factual basis. As such, the Court will find that this conviction is a serious felony as defined by Penal Code section 1192.7(c)(23)." The court proceeded to sentence defendant to an aggregate 50-year-to-life term in state prison. The court also imposed a one-year consecutive term for the personal use of a deadly weapon enhancement and a five-year consecutive term for the prior conviction allegation.
DISCUSSION
Defendant asserts there is insufficient evidence that his prior conviction in Texas qualifies as a serious felony because the plea does not establish that defendant personally used a deadly weapon in the Texas crime. The People argue that the plain language of the plea agreement justifies a true finding absent opposing evidence because " ' "government records clearly describing a prior conviction presumptively establish that the conviction in fact occurred," ' " and " '[s]ome evidence must rebut this presumption before the authenticity, accuracy, or sufficiency of the prior conviction records can be called into question.' " We disagree that defendant was required to put forth evidence rebutting the plea agreement because defendant is not challenging the existence of the prior conviction, or the authenticity of the records, but rather whether there was sufficient evidence to deem the conviction a serious felony under California law. We conclude that the evidence here was not sufficient to do so.
We review defendant's challenge to the trial court's strike finding in accordance with the usual rules on appeal applicable to claims of insufficient evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) " 'The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.]" (Ibid.)
Under California's three strikes law, a defendant's sentence is enhanced upon proof the defendant has been previously convicted of a strike—a " 'violent felony' " as defined in Penal Code section 667.5, subdivision (c), or a "serious felony" as defined in section 1192.7, subdivision (c). (§§ 667, subd. (f)(1), 1170.12, subd. (d)(1).) If a crime is not among the crimes listed in those statutory provisions, it qualifies as a serious felony within the meaning of section 1192.7, subdivision (c) as "any felony in which the defendant personally used a dangerous or deadly weapon." (§ 1192.7, subd. (c)(23); see § 1192.8, subd. (a).)
Undesignated statutory references are to the Penal Code. --------
" ' "In order for a prior conviction from another jurisdiction to qualify as a strike under the Three Strikes law, it must involve the same conduct as would qualify as a strike in California" ' [citation], and the statutory elements of the foreign crime must include all the elements of the California strike offense [citation]. 'There is, however, no guarantee the statutory definition of the crime in the other jurisdiction will contain all the necessary elements to qualify as a predicate felony in California.' [Citation.] Thus, if the foreign law can be violated in different ways, and ' "the record does not disclose any of the facts of the offense actually committed, the court will presume that the prior conviction was for the least offense punishable under the foreign law." ' [Citation.]" (People v. Denard (2015) 242 Cal.App.4th 1012, 1024.)
The prosecution introduced evidence showing that defendant pleaded guilty to aggravated assault in 1992 and was sentenced to 10 years' probation. As noted, the plea agreement stated in relevant part that defendant "did . . . unlawfully intentionally and knowingly cause serious bodily injury to [J.S.] by striking [J.S.] with a deadly weapon, namely, a glass." Although this provides a basic description of defendant's crime, it does not furnish clear factual detail about how the crime occurred or defendant's specific role. It does not, in particular, provide evidence that defendant was the main or sole perpetrator, rather than someone who merely aided or abetted in the crime.
The trial court posited, but dismissed, the possibility that more than one person may have held onto the glass at the same time while striking the victim. But that is not the only fact scenario inferable from the language of the Texas plea. Rather, as defendant argues, there is a possibility that, during the bar fight, defendant "merely aided and abetted the person who wielded the glass and personally inflicted the injury." The facts recited in the plea agreement do not exclude this possibility or impel the conclusion that defendant acted alone.
Under Texas law, a defendant can be convicted of aggravated assault as a principal or under an accomplice liability theory. (Williams v. State (Tex.Ct.App. 2013) 410 S.W.3d 411, 413 ["Williams committed aggravated assault with a deadly weapon as a party if he acted with intent to promote or assist [the codefendant] in the commission of the offense by encouraging, aiding, or attempting to aid him in the aggravated assault of [the victim] with a firearm"].) Thus, although one plain inference to be drawn from the Texas plea agreement is that defendant personally used a glass to assault the victim there, without knowing " ' "the facts of the offense actually committed" ' " (People v. Denard, supra, 242 Cal.App.4th at p. 1024), the possibility that he pleaded guilty and was convicted for encouraging, aiding, or attempting to aid someone else in striking the victim cannot be foreclosed.
We find that the plea agreement, standing alone, is insufficient to establish that defendant personally used a dangerous or deadly weapon within the meaning of section 1192.7, subdivision (c)(23). Consequently, we will remand the matter for a possible retrial on the prior strike allegation, which is not barred by double jeopardy principles. (People v. Barragan (2004) 32 Cal.4th 236, 241-242.)
DISPOSITION
The finding that defendant's 1992 conviction in the State of Texas for aggravated assault was for a serious felony within the meaning of the three strikes law is reversed, and the case is remanded for further proceedings. If the People elect to retry the strike allegation, the trial court shall resentence defendant following retrial. If the People decline to retry the strike allegation, the trial court shall dismiss the strike allegation for the 1992 prior conviction and resentence defendant. In all other respects, the judgment is affirmed.
KRAUSE, J. We concur: BLEASE, Acting P. J. DUARTE, J.