Opinion
Rehearing Granted May 20, 1991.
Fern M. Laethem, State Public Defender, under appointment by the Court of Appeal and Victor J. Morse, Deputy State Public Defender, San Francisco, for defendant and appellant.
John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Martin S. Kaye and Laurence K. Sullivan, Supervising Deputy Attys. Gen., San Francisco, for plaintiff and respondent.
STEIN, Associate Justice.
Appellant challenges the validity of his out-of-state prior convictions which were used to enhance his sentence.
FACTS
Appellant was charged with 15 offenses arising out of a series of armed robberies and assaults. The most serious charge was aggravated assault by an habitual offender (Pen.Code, § 667.7). Appellant pled guilty to two counts of possession of a firearm by a convicted felon. After the charge of attempted murder was dismissed on motion of the district attorney, a jury found appellant guilty of the remaining 12 counts. Thereafter, a court trial was held on the allegation that appellant had suffered five prior serious felony convictions:
Unless otherwise indicated, all further statutory references are to the California Penal Code.
1967--robbery--St. Louis, Missouri
1967--assault--St. Louis, Missouri
1973--robbery--Jackson County, Missouri
1973--robbery--Jackson County, Missouri
1978--robbery--Colorado.
The trial court found these alleged prior convictions to be true. Based on his present conviction for aggravated assault and his three prior prison terms for violent felonies, appellant was adjudged an habitual offender and sentenced to life imprisonment without possibility of parole. The court also imposed a consecutive eight-year sentence on four other counts. Concurrent sentences were imposed on the remaining counts but stayed pursuant to section 654. The court also imposed three consecutive five-year enhancements for prior serious felony convictions (§ 667), but stayed execution of those enhancements in view of the life sentence imposed pursuant to section 667.7.
The eight-year term was computed as follows:
DISCUSSION
I. Enhancement Under Section 667.7
Section 667.7 sets up a self-contained sentencing scheme for certain violent habitual offenders. It provides for mandatory sentences in lieu of the determinate sentences provided by section 1170. (People v. Victor (1991) 227 Cal.App.3d 518, 524, 278 Cal.Rptr. 7.) If the offender has served two prior prison terms for certain enumerated violent felonies, he may be sent to prison for life with the possibility of parole after 20 years; however, if the offender has served three such prior prison terms, he may be sent to prison for life without possibility of parole.
Section 667.7 permits out-of-state prior convictions to be used for enhancement purposes only if the out-of-state offense "includes all of the elements" of the offense under California law. (§ 667.5, subd. (f); see, generally, People v. Crowson (1983) 33 Cal.3d 623, 632, 190 Cal.Rptr. 165, 660 P.2d 389.) In the present case, the trial court found that appellant had served three separate prior prison terms for violent felonies: robbery and assault in 1967; two robberies in 1973; and a robbery in 1978.
Appellant contends his robbery conviction from Colorado cannot be used because the definition of robbery under Colorado law is not the same as under California law, in that Colorado law does not require an intent to steal. Section 18-4-301(1) of the Colorado Revised Statutes provides: "A person who takes anything of value from the person or presence of another by the use of force, threats, or intimidation commits robbery." The prosecutor argued to the trial court that the specific intent to steal required by California law is equally required by Colorado case law, though not by the statute, citing People v. Gallegos (1954) 130 Colo. 232, 274 P.2d 608. Yet, the Supreme Court of Colorado overruled Gallegos in 1977 and held that robbery does not require specific intent to steal. (People v. Moseley (1977) 193 Colo. 256, 566 P.2d 331.) Since appellant was convicted in 1978, his Colorado robbery conviction cannot be used for enhancement under section 667.7.
Similarly, appellant's three Missouri robbery convictions cannot be used because intent to steal also is not an element of the crime of robbery under Missouri law. Section 560.120 of the Revised Statutes of Missouri defines robbery as "taking the property of another from his person, or his presence, and against his will, by violence to his person, or by putting him in fear of some immediate injury to his person." An intent to permanently deprive the owner of possession is not an element of the offense. (State v. Kennebrew (Mo.1964) 380 S.W.2d 293, 295.)
Because appellant has not served the requisite two prior prison terms for violent felonies, section 667.7 is inapplicable to him, and his sentence of life without possibility of parole must be set aside.
II. Enhancements Under Section 667
The trial court imposed three five-year enhancements under section 667, but stayed them because of the sentence imposed under section 667.7. (See § 667, subd. (b).) Since the sentence under section 667.7 must be stricken, the question arises whether appellant's out-of-state convictions will support the enhancements imposed under section 667.
Section 667 authorizes a five-year enhancement for each prior conviction for a "serious felony," as defined in section 1192.7. Section 667 permits an enhancement for out-of-state convictions when the out-of-state offense "includes all of the elements of any serious felony." Here, the trial court imposed three five-year enhancements for (1) the 1967 robbery and assault convictions from Missouri, (2) the two 1973 robbery convictions from Missouri, and (3) the 1978 robbery conviction from Colorado. There is no question but that appellant's 1967 Missouri conviction for "assault with intent to kill with malice" includes all of the elements of a serious felony in California--i.e., attempted murder. (§ 1192.7, subd. (c)(9).) The more difficult question is whether appellant's Missouri and Colorado convictions for robbery are equivalent to "any serious felony." As noted above, neither the Colorado nor the Missouri robbery statute contains the essential element of an intent to steal required by the equivalent California crime.
With respect to the Missouri robbery convictions, the trial court looked beyond the elements of the crime and examined the record of conviction. The 1967 Missouri information alleged that appellant robbed the Baltimore Bar "with the felonious intent then and there to permanently deprive the said Baltimore Bar ... of the use of the said property...." The docket sheet noted appellant pled guilty "as charged." Similarly, with respect to the 1973 Missouri robberies, the factual basis for the pleas indicates appellant had the intent to steal. Because the intent to steal was alleged and admitted by the guilty pleas, the trial court concluded that the Missouri robberies contained the element of intent to steal and would have been robberies under California law. (See People v. Guerrero (1988) 44 Cal.3d 343, 355, 243 Cal.Rptr. 688, 748 P.2d 1150.)
In a recent decision, the Third District Court of Appeal has held that such a reliance on the foreign state's record is improper. (People v. Guzman (1990) 225 Cal.App.3d 1302, 275 Cal.Rptr. 856.) In Guzman, the defendant was alleged to have a prior robbery conviction from Texas. Yet, under Texas law the crime of robbery does not require asportation--a required element under California law. The trial court examined the record of the Texas conviction and found that asportation had in fact occurred and thus concluded the prior conviction could be used to enhance. The Court of Appeal reversed, holding that the Supreme Court's decision in People v. Guerrero, supra, 44 Cal.3d 343, 243 Cal.Rptr. 688, 748 P.2d 1150, cannot be read so broadly as to abrogate the statutory requirement of equivalency of elements for foreign convictions.
The issue in Guerrero was whether a prior California burglary conviction was a burglary of a residence so as to qualify as a serious felony under section 667. Guerrero did not involve the question whether an out-of-state offense includes all the elements of a serious felony under California law.
In Guzman, the court concluded that Guerrero must be read to authorize a review of the record only when the prior crime is defined to include several variations, one of which constitutes a serious felony under California law. The search of the record is further limited to crucial issues which have actually been litigated. "A California court is not free to scour the foreign record in search of testimony in support of an unadjudicated, uncharged and immaterial issue, one which the accused would have no reason to contest." (People v. Guzman, supra, 225 Cal.App.3d at p. 1309, 275 Cal.Rptr. 856.)
We agree with Guzman insofar as it limits the sentencing court to a review of the judgment of the foreign conviction and to a consideration of the least adjudicated elements of the offense. (In re McVickers (1946) 29 Cal.2d 264, 276, 176 P.2d 40.) Thus, we conclude the trial court should not have examined the record to search for the intent to steal. But we part company with the Guzman court insofar as it requires an equivalency between the foreign offense and the similarly named California offense.
Unlike section 667.7, which requires that the foreign offense include "all of the elements of the particular felony as defined under California law" (§ 667.5, subd. (f); emphasis added), section 667 requires only that the foreign offense include "all of the elements of any serious felony" (subd. (a), emphasis added). "Serious felony" is defined in section 1192.7 (§ 667, subd. (d)), and that section includes offenses not expressly defined under California law--e.g., burglary of an inhabited dwelling (§ 1192.7, subd. (c)(18)), bank robbery (§ 1192.7, subd. (c)(19)), or grand theft involving a firearm (§ 1192.7, subd. (c)(26)). We discern that the Legislature contemplated that persons with similar prison records would receive similar sentences. The enhancements imposed by section 667 are not limited to those who commit offenses defined by California law.
The defendant's rights are fully protected since the equivalent California serious felony is determined from the least adjudicated elements of his foreign conviction (In re Finley (1968) 68 Cal.2d 389, 392-393, 66 Cal.Rptr. 733, 438 P.2d 381) and not some "unadjudicated, uncharged and immaterial issue, one which the accused would have no reason to contest." (People v. Guzman, supra, 225 Cal.App.3d at p. 1309, 275 Cal.Rptr. 856.) Moreover, the California court is limited to the essential facts of the defendant's guilt, which have been lawfully adjudicated in the foreign court and have res judicata effect. (In re McVickers, supra, 29 Cal.2d 264, 176 P.2d 40.)
The Third District Court of Appeal declined to adopt this reasoning because "[t]he underlying felony in Texas does not contain the elements of its California counterpart." (People v. Guzman, supra, 225 Cal.App.3d at p. 1317, fn. 6, 275 Cal.Rptr. 856.) "What's in a name? That which we call a rose by any other word would smell as sweet ..." (Shakespeare, Romeo and Juliet, Act II, sc. ii.)
In the present case, appellant's 1967 Missouri and 1978 Colorado robbery convictions, although not equivalent to robbery as defined by California law (§ 211), do include all of the elements of an assault with a deadly weapon, which qualifies as a serious felony either as a felony in which the defendant personally used a dangerous or deadly weapon (§ 1192.7, subd. (c)(23)) or a felony in which the defendant personally used a firearm (§ 1192.7, subd. (c)(8)). (People v. Equarte (1986) 42 Cal.3d 456, 465, 229 Cal.Rptr. 116, 722 P.2d 890.) The 1967 Missouri judgment recites that appellant was convicted of "Robbery First Degree By Means of a Dangerous and Deadly Weapon." The 1978 Colorado judgment recites that appellant was convicted of aggravated robbery upon his plea of guilty to the information, which in turn recites that appellant took money from the victim "by the use of force, threats and intimidation" and that during the robbery appellant "was armed with a deadly weapon, to-wit: a gun...."
The specific elemental facts recited in the information are incorporated by reference into the judgment and may therefore properly be considered. (People v. Colbert (1988) 198 Cal.App.3d 924, 930, 244 Cal.Rptr. 98; People v. Longinetti (1985) 164 Cal.App.3d 704, 706, 210 Cal.Rptr. 729.)
With respect to appellant's 1973 Missouri robbery convictions, however, we conclude that they may not be used to enhance his sentence. Defendant was convicted in two cases of "Robbery First Degree" after being charged in both cases with using a blank pistol. The use of an unloaded gun is not an assault with a deadly weapon (People v. Orr (1974) 43 Cal.App.3d . 666, 672, 117 Cal.Rptr. 738; People v. Ranson (1974) 40 Cal.App.3d 317, 321, 114 Cal.Rptr. 874) and thus cannot qualify as a serious felony.
CONCLUSION
The judgment is modified in the following respects: The finding that appellant is an habitual criminal pursuant to Penal Code section 667.7 is stricken, and the sentence of life without possibility of parole, which is based on that finding, is set aside. The enhancement of appellant's sentence for having suffered a prior serious felony conviction (§ 667) based on his 1973 Missouri convictions is also set aside. The stay of the remaining two enhancements for having suffered prior serious felony convictions (§ 667), based on appellant's 1967 and 1978 convictions, is lifted, and they are ordered into effect.
As so modified, the judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment and forward it to the Department of Corrections.
NEWSOM, Acting P.J., and DOSSEE, J., concur.
Count 8"assault: 3 years (middle) Count 2"assault: 1 year ( 1/3) Count 5"assault: 1 year ( 1/3) Count 11"robbery: 1 year ( 1/3) Use of a gun: 2 years.