Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super.Ct. No. FVA701261. Michael A. Knish, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Martin Kassman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Chandra E. Appell, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, J.
FACTUAL AND PROCEDURAL HISTORY
A jury convicted defendant Robert Glen Daniel Ray of assault as a lesser included offense of the charged count of assault with a deadly weapon (count 1—Pen. Code § 240) and criminal threats (count 2—§ 422). In a bifurcated bench trial, the court considered whether defendant had suffered two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subd. (a)) and a prior prison allegation (§ 667.5, subd. (b)). As to the alleged 1994 prior strike conviction, the People submitted exhibit No. 4, a packet containing certified documents in case No. FVA002489. Included in the packet was a copy of the felony complaint dated June 22, 1994, which alleged that “[o]n or about May 23, 1994,... the crime of ASSAULT GREAT BODILY INJURY AND WITH DEADLY WEAPON, in violation of PENAL CODE SECTION 245(a)(1), a Felony, was committed by ROBERT GLEN RAY, who did willfully and unlawfully commit an assault... with a deadly weapon, to wit, CLUB, and by means of force likely to produce great bodily injury.” (Sic.)
All further statutory references are to the Penal Code unless otherwise indicated.
The packet additionally contained a copy of a minute order in the same case dated July 26, 1994, which reflected that defendant pled guilty “[t]o all charges and counts as alleged” prior to the holding of a preliminary hearing. The minute order further noted that defendant “personally and by counsel withdraws plea of not guilty to... Count 1—PC 245(A)(1) felony.” It also indicated that defendant was pleading guilty pursuant to a plea bargain, which was “incorporated by reference herein” A minute order dated August 23, 1994, reflected that defendant was granted three years probation. On April 25, 1995, defendant’s probation was summarily revoked. On May 2, 1995, the court formally revoked defendant’s probation and sentenced him to the “Middle Term” of three years in state prison. All the aforementioned minute orders reflected that defendant’s convicted offense was “PC 245(A)(1).” The court found the allegation that defendant had incurred a prior strike conviction in 1994 true. It also found the prior prison allegation true, but found the second alleged prior strike conviction not true. The court sentenced defendant to an aggregate term of three years eight months in state prison.
As noted by defendant, neither the plea agreement nor the transcripts of the oral taking of the plea were included in the packet.
DISCUSSION
Defendant contends that insufficient evidence supports the court’s true finding on the allegation that he suffered a prior strike conviction in 1994, in particular, that he was convicted of assault with a deadly weapon rather than merely assault by means of force likely to cause great bodily injury, a non-strike offense. The People maintain substantial evidence supports the court’s finding. We agree with the People.
“On review, we examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt.” (People v. Delgado (2008) 43 Cal.4th 1059, 1067 (Delgado).) “‘[The] trier of fact is entitled to draw reasonable inferences from certified records offered to prove a defendant suffered a prior conviction....’ [Citations.]” (Id. at p. 1066.)
The court’s true finding on the 1994 prior strike conviction was supported by substantial evidence. Here, the certified copy of the complaint regarding the 1994 offense twice alleged that defendant had committed assault with a deadly weapon. The complaint even noted the weapon allegedly used by defendant, a club. The minute order from defendant’s plea indicated that defendant pled guilty “[t]o all charges and counts as alleged.” This was sufficient evidence to support the trial court’s reasonable inference that defendant had, in fact, pled guilty to assault with a deadly weapon, a serious felony that subjected defendant to sentencing under the “Three Strikes” regimen. (Delgado, supra, 43 Cal.4th at p. 1065; People v Banuelos (2005) 130 Cal.App.4th 601, 606.)
Defendant maintains that because the complaint alleged acts reflecting both prongs of the section 245, subdivision (a)(1), offense, i.e., assault with a deadly weapon and assault by means of force likely to commit great bodily injury, the record is ambiguous as to whether defendant pled guilty only as to the former or the latter. A conviction of assault by means of force likely to cause great bodily injury is not a serious felony unless it also involves the use of a deadly weapon or actually results in the personal infliction of great bodily injury. (People v Banuelos, supra, 130 Cal.App.4th at p. 605.) Thus, defendant avers that the possibility that defendant pled guilty only to assault by means of force likely to product great bodily injury undermines the trial court’s determination that he suffered a prior strike conviction. Defendant argues that conjunctive pleading does not necessarily compel the determination that defendant committed both acts alleged: “Where the statute enumerates several acts disjunctively, which separately or together shall constitute the offense, the indictment, if it charges more than one of them, which it may do, and that, too, in the same count, should do so in the conjunctive; as for instance: ‘did utter, publish, pass, and attempt to pass,’ etc. [Citations.] And it has been accordingly held that indictments containing disjunctive allegations, as that he murdered or caused to be murdered, forged or caused to be forged, burned or caused to be burned, sold spirituous or intoxicating liquors, conveyed or caused to be conveyed, were bad for uncertainty.” (People v. Tomlinson (1868) 35 Cal. 503, 508-509.)
Contrary to defendant’s assertion, the description of the offense contained in the complaint is not “too ambiguous to constitute substantial evidence of the precise factual nature of the prior convictions.” (Delgado, supra, 43 Cal.4th at p. 1069.) Here, the conjunctive nature of the pleading, the twice alleged use of a deadly weapon, the specific reference to the type of weapon used, and the fact that defendant pled guilty as charged supports the reasonable inference that defendant committed and was convicted of one act, an assault with weapon by means likely to cause great bodily injury. It was reasonable for the court to construe the language of the pleading not in a manner which would compel a finding of one act or the other, or both as separate acts, but both as one act. Therefore, sufficient evidence supports the court’s finding.
DISPOSITION
The judgment is affirmed.
We concur: RICHLI, Acting P. J. GAUT, J.