Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F00234
BUTZ, J.Defendant Larry Robinson was convicted by a jury of one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and one count of making criminal threats (§ 422). He was sentenced as a three strikes felon to two concurrent state prison terms of 25 years to life, with the possibility of parole, plus a determinate 15-year term on prior felony enhancements.
Undesignated statutory references are to the California Penal Code. We also examine defendant’s prior convictions in New Jersey.
Eschewing any semblance of discretion in choosing his arguments, defendant inundates us with a plethora of claims ranging from the plausible to the ridiculous, including evidentiary and instructional error, prosecutorial misconduct, ineffective assistance of counsel and sentencing errors. We shall reverse two of the trial court’s strike findings and otherwise affirm the judgment.
FACTUAL BACKGROUND
On January 10, 2006, 14-year-old Nicholas J. and his 12-year-old younger brother, R.J., were living in a home with their mother, older sister Louise W., and other siblings, near Valley High School in Sacramento.
Around 7:00 p.m., the boys’ mother said she saw someone in a car outside their house, and asked Nicholas and R.J. to check to see if anyone was there.
The two boys emerged from the house. R.J., the younger boy, was carrying a pole or a stick. As they approached the car, they saw defendant, whom they recognized, slumped over in the back seat of the car. He seemed to be drinking something.
One of the boys threw a cup at the car. Defendant then tried to open the car door, but the boys pushed against it, trying to keep it shut. Defendant forced the door open. Nicholas tried to run away, but defendant grabbed him by the shirt from behind, ripping it. Defendant reached into his back pocket, pulled out a knife with a four- or five-inch-long blade and yelled, “I’ll kill you motherfucker,” or “I’ll stab you motherfucker,” and swung the knife at Nicholas twice, extending his right arm with a crossing motion.
Nicholas testified that he threw the cup at the car. R.J. first testified that he dropped the cup, but later said he threw the cup.
R.J. hit defendant with the stick, causing him to let go of Nicholas. Both brothers then took off running down the street, with defendant in pursuit. He chased them into a school yard and cornered them in front of a locked gate. Defendant reached into his pants and yelled, “I have a gun.” At this point, the boys’ sister Louise arrived, wielding a hoe or long pole, and threatened to hit defendant with it. Defendant fled, still holding the knife and dropping a bottle along the way.
A patrol officer responding to a dispatch call spotted defendant jumping over a fence and apprehended him in the back yard of a house. He conducted a pat-down search of defendant and recovered a box-cutter knife with a concealed blade. A steak knife was also found in the front yard of the property.
Defense
Defendant testified that he was acquainted with Nicholas and R.J., since their mother is his brother’s girlfriend. On the evening in question, he was waiting in a car outside their house because he wanted to talk to his girlfriend Edna, who had been staying there for a couple of days.
He heard the garage door open and the two boys came out, “throwing stuff” at the car. Defendant thought Nicholas had thrown a screwdriver and R.J. a bottle at the car. He tried to get out to see what was going on, but the boys were pushing the door shut. When defendant finally managed to get out, he noticed a knife on the ground. He picked it up and, holding it above his head, he said, “What’s going on here? Why you all out here with knives?” He told the boys he was going to tell their mother they were attacking him and throwing knives. He then put the knife in his pocket.
Defendant acknowledged grabbing Nicholas and ripping his shirt, “to find out . . . what was going on.” When he did so, R.J. hit him with a stick and defendant took off running. According to defendant, the boys chased him down the street, not the other way around. Both boys had “weapons” in their hands. They came after him, “swinging and throwing stuff at me.” Defendant finally stopped running, because he was out of breath. Trying to “scam [his] way” out of the situation, he told them, “You all come up near me anymore, I’m going to pull out my gun and shoot you.” He was unarmed, but said it to “scare them off.” The boys’ sister Louise then approached with a stick in her hands, telling him “you shoot my brother, I’ll hit you with this stick.” Louise struck him on the shoulder with the stick and defendant “tore off running again.” He admitted jumping over a fence to elude a police officer because he had a bad “experience about 30 years ago” when the police knocked all his teeth out and broke his nose. He threw the knife away to avoid a conflict with the officer.
DISCUSSION
I. Prosecutorial Misconduct
Nicholas testified that when he and his brother first saw defendant, he appeared to be “drinking something” while slumped in the back seat of the car. He also testified that as defendant fled the school yard, he dropped a bottle, which “I think . . . was liquor.” R.J. said he saw defendant with a bottle containing “blue stuff” in it. Louise testified that when she confronted defendant, he had a knife in his back pocket and a beer bottle in his hand.
On cross-examination, the prosecutor asked defendant if he had been drinking that evening. Defendant denied it. The prosecutor then asked defendant if he, in fact, was “housed at detox” that night. Defendant answered “no.” The prosecutor then offered to show defendant the booking form describing where he was housed. Defendant declined, stating, “I know where I was housed at.” The prosecutor repeated, “And isn’t it true you were housed at detox?” whereupon defendant replied, “Not for alcohol.”
In her rebuttal argument, the prosecutor stated: “He [defendant] sat up there and tried to make you guys believe that he is this great person, that he was just trying to talk some sense to these kids like why do you have the knife? Why are you doing this? . . . That’s what he wants you to believe, that he was just acting as this very nice guy. . . . [¶] . . . [¶] And you know his story was all about making him look good. Think about the end of the line of questioning yesterday when I was talking to him about whether he was drunk and where he was housed in jail. He didn’t want to tell you he had been drinking. He didn’t want to tell you that he was drunk, and why not? Because it makes him look bad. How would you guys look at him if you had this drunk idiot swinging the knife at little kids when it’s dark outside, threatening to kill them? You guys wouldn’t think very highly of him at that point. So he tries to suppress that, tries to make it sound like, no, I was stone-cold sober. I don’t even need to look at that. I know where they housed me. Wouldn’t even look at the evidence that was confronting him because that made him look bad.”
Defendant claims the prosecutor committed reversible misconduct in these remarks by telling the jury he was drunk that night when, in fact, there was no substantial evidence in the record to support this assertion.
The point is forfeited because, as defendant acknowledges, there was no objection to the prosecutor’s remarks or request for a curative admonition. (People v. Williams (1997) 16 Cal.4th 153, 220-221 (Williams); People v. Wash (1993) 6 Cal.4th 215, 265.)
We also find no misconduct. “‘“It is settled that a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.”’” (Williams, supra, 16 Cal.4th at p. 221, quoting People v. Wharton (1991) 53 Cal.3d 522, 567-568.) The observations of the prosecution witnesses enumerated above, coupled with defendant’s implied admission that he was housed at “detox” overnight, supported a reasonable inference that defendant had been drinking to the point of inebriation. In a trial sharply focused on credibility, the prosecutor suggested that defendant had lied about his drinking that night, and thus the jurors should be equally distrustful about his account of the incident in which he portrayed himself as an innocent victim. This was fair argument, not misconduct.
Because we find no misconduct, defendant’s derivative claims of ineffective assistance of counsel and error in denying his motion for new trial on that ground, are moot.
II. Admission of Old Priors
Prior to trial, the prosecutor moved in limine to admit numerous prior convictions for impeachment purposes, ranging from a 1972 conviction for possession of a stolen vehicle to a 1998 conviction for burglary. Defense counsel advocated excluding any conviction more than 20 years old, on account of remoteness. Exercising its discretion under Evidence Code section 352, the trial court ruled that defendant could be impeached with a 1992 conviction for obstruction of justice, a 1993 larceny conviction and a 1998 burglary conviction. At the conclusion of his direct examination, defendant admitted these prior felony convictions.
Before commencing her cross-examination, the prosecutor moved to admit evidence that defendant had been convicted of four additional felonies pertaining to a propensity for violence, under Evidence Code sections 1101 or 1103: sexual assault and robbery in 1973, two counts of assault in 1976, and a 1980 conviction for robbery. Stated the prosecutor: “He’s alleging that our victim, Nicholas [J.], was attacking him, threw a knife at him; that [R.J.] threw a coffee cup at him, and that [R.J.] was also hitting him with a rake or something that he got from the garage and that, additionally, Louise [W.] was using a stick, or whatever it was that she was using, to hit him. So in that he’s claiming self-defense, I think his priors for the crimes of violence are admissible.” She also contended that defendant “opened the door” to admission of the priors by testifying about “run-in’s from police” that occurred 30 years ago. Defense counsel objected on grounds of prejudice and remoteness.
The court ruled admissible defendant’s two assault convictions in 1976 and robbery conviction from 1980 on the grounds stated. However, the court cautioned the prosecutor that “[i]f defendant admits that he was convicted of those crimes, then I expect you to move on.”
Defendant then retook the stand and admitted the two convictions for assault in 1976 and robbery in 1980. The jury was given an instruction informing them that they could, but were not required to, consider evidence of these prior felonies “for the limited purpose of deciding whether or not defendant has a trait of character tending to show violence.”
Defendant charges abuse of discretion in allowing introduction of this bad character evidence on the grounds that (1) he never introduced evidence of the boys’ violent character or of his “peaceful” character; and (2) he did not defend against the assault with a deadly weapon (ADW) charge by claiming self-defense.
First, defendant has forfeited this point by failing to object on the grounds he now raises. (Evid. Code, § 353; People v. Jackson (1996) 13 Cal.4th 1164, 1235.) Defense counsel’s only objections to the prosecution’s motion were remoteness and prejudice. He never objected on the basis that admission of the felonies constituted inadmissible character evidence.
The argument is also unfounded, both factually and legally. Where a person’s character or a trait of his character is in issue, it may be proven by any otherwise admissible evidence, including opinion evidence, reputation evidence, and evidence of specific instances of conduct. (Evid. Code, § 1100.) While character evidence is generally not admissible to prove conduct on a specified occasion (id., § 1101, subd. (a)), there are exceptions to the general rule, including Evidence Code section 1103, subdivision (b), which allows the prosecution to introduce evidence of the defendant’s character for violence to show conduct on a specified occasion if the defense has first adduced evidence that the victim had a character or trait of character tending to show violence.
Contrary to defendant’s premise, character trait evidence is not limited to generic evidence that a person has a “peaceful” character or “violent character,” but includes specific instances of a person’s violent conduct. (Evid. Code, § 1100.) Here, defendant testified that the boys were violent toward him: They threw a knife at the car he was sitting in; they threw objects at him; they chased him down the street. Defense counsel conceded that self-defense was an issue in the case and the jurors were fully instructed on the law of self-defense. Under these circumstances, the trial court properly admitted the priors as rebuttal evidence to show violent propensity under Evidence Code section 1103. (People v. Walton (1996) 42 Cal.App.4th 1004, 1014-1015, disapproved on a different ground in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3; People v. Blanco (1992) 10 Cal.App.4th 1167, 1173-1176.)
III. Admonition Regarding Presumption of Innocence
During jury voir dire, the trial court admonished the jurors about the presumption of innocence in the following terms:
“As I explained to you earlier, under our system of justice the defendant is entitled to the presumption of innocence until the prosecution proves his guilt beyond a reasonable doubt. So if I ask you to vote right now on [defendant’s] guilt or innocence, you would have to vote for innocence, right? Because you haven’t heard any evidence. Everybody understand that as you sit here right now if I said, all right, take a vote right now, you would have to vote innocent because you haven’t heard any evidence much less enough evidence to prove him guilty beyond a reasonable doubt. That’s what I’m talking about. Keep that presumption in your mind until you go into the room to deliberate. Is there anyone who cannot or will not follow that rule of law?” (Italics added.)
Although defense counsel lodged no objection at the time, defendant now argues that the italicized remarks require reversal of his convictions because they advocated a rule that “unlawfully and unconstitutionally tied and limited the presumption of innocence to the evidentiary portion of the trial which ended once the jury entered the deliberation room . . . .” We find no reversible error.
“In reviewing any claim of instructional error, we must consider the jury instructions as a whole, and not judge a single jury instruction in artificial isolation out of the context of the charge and the entire trial record. . . . The meaning of instructions is no longer determined under a strict test of whether a ‘reasonable juror’ could have understood the charge as the defendant asserts, but rather under the more tolerant test of whether there is a ‘reasonable likelihood’ that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel.” (People v. Dieguez (2001) 89 Cal.App.4th 266, 276 (Dieguez).)
While it is true that the presumption of innocence must be weighed along with the evidence in reaching a verdict (People v. Hill (1946) 77 Cal.App.2d 287, 293), it must be kept in mind that the court’s remark about maintaining the presumption “until you go into the [jury] room” occurred during voir dire, before the jury had been chosen and before trial had even commenced. Defendant makes no claim that the trial judge inaccurately instructed the jury regarding the presumption of innocence during the trial itself. Further, the jury was fully and correctly instructed on the presumption at the conclusion of the trial.
Even if we presume a juror would understand the court’s remark the way defendant now interprets it, under the circumstances, the court’s single statement during voir dire was inconsequential and worked no miscarriage of justice. (Cal. Const., art. VI, § 13.) We find no probability that the remark caused the jury to disregard or misapply the presumption of innocence.
IV. Unanimity Instruction
Defendant faults the trial court’s failure to give a unanimity instruction sua sponte. He asserts the jury could have divided on which act formed the basis for both the ADW and criminal threats conviction.
“In a criminal case, a jury verdict must be unanimous. [Citations.] . . . Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act.” (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) We analyze defendant’s unanimity argument with respect to each offense separately.
A. Assault with a Deadly Weapon
Defendant postulates that the jury could have convicted him of the ADW charge based upon three separate “acts”: (1) Nicholas’s testimony that defendant swung the knife at him while yelling, “I’ll kill you motherfucker”; (2) R.J.’s testimony that defendant grabbed Nicholas’s shirt while holding the knife and threatened to kill Nicholas; or (3) R.J.’s testimony that defendant was holding the knife in his hand at the school yard while threatening to stab them.
Defendant’s argument fails to persuade. First of all, (1) and (2) are not separate acts but two witnesses’ testimony describing the same act. Such a discrepancy in perception does not trigger a unanimity instruction. “[W]here the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed . . ., the jury need not unanimously agree on the basis or, as the cases often put it, the ‘theory’ whereby the defendant is guilty.” (Russo, supra, 25 Cal.4th at p. 1132.)
Second, the prosecutor did not rely on more than one act to prove ADW. She made it crystal clear in her closing argument that the charge was based on defendant having swung the knife twice at Nicholas while threatening to kill him. Hence, any failure to give a unanimity instruction was harmless beyond a reasonable doubt. (People v. Brown (1996) 42 Cal.App.4th 1493, 1500, 1502; People v. Deletto (1983) 147 Cal.App.3d 458, 464-474.)
B. Criminal Threats
Defendant also splices and dices the testimony of different witnesses to concoct a variety of acts that he claims could have formed the basis for his criminal threats conviction.
Under the “continuous course of conduct exception” no unanimity instruction is required when the acts are so closely connected that they form part of one and the same transaction, and thus one offense. (E.g., People v. Mota (1981) 115 Cal.App.3d 227, 231-234 [repeated acts of rape during one hour].) “The ‘continuous conduct’ rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them.” (People v. Stankewitz (1990) 51 Cal.3d 72, 100; Dieguez, supra, 89 Cal.App.4th at p. 275.)
The criminal threats charge falls within this exception. Defendant made a series of utterances over the course of a few minutes, threatening to kill, stab and/or shoot the boys. All of these statements were so closely connected in time and space as to form one transaction.
Even if we were to conclude the unanimity instruction should have been given in this case, we would not find prejudice. “Where the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him [or her] of any of the various offenses shown by the evidence, the failure to give the unanimity instruction is harmless.” (People v. Thompson (1995) 36 Cal.App.4th 843, 853, citing People v. Jones (1990) 51 Cal.3d 294, 307.) Here, the jury was presented with two diametrically opposite versions of the same incident. Defendant testified that he acted peaceably and reasonably to an unprovoked attack by Nicholas and R.J.; he denied making any threats. The prosecution witnesses portrayed defendant as the aggressor who assaulted Nicholas with a four-inch steak knife and repeatedly threatened both boys with death or bodily harm. Because the jury was confronted with a straightforward credibility contest, we find no reasonable possibility that a unanimity instruction would have resulted in an acquittal of the charge.
V. CALCRIM No. 361
Without objection, the jury was given CALCRIM No. 361, which instructs that, if the defendant failed to explain or deny any evidence against him introduced by the prosecution which he can reasonably be expected to deny because of facts within his knowledge, the jury may take that failure into consideration in evaluating that evidence.
Defendant claims it was error to give the instruction because his testimony “was complete” and included explanations for all of his actions during and following the incident. We disagree.
A “failure to explain or deny” instruction is appropriate where the defendant tenders an explanation which, while superficially accounting for his activities, nevertheless seems bizarre or implausible. (People v. Belmontes (1988) 45 Cal.3d 744, 783-784; People v. Mask (1986) 188 Cal.App.3d 450, 455.) Defendant’s testimony fit this description in at least three respects.
First, defendant admitted that when he opened the car door, he grabbed Nicholas by the shirt as the boy tried to get away, ripping the shirt. Yet, according to defendant, instead of attempting to flee, the boy simply stopped in his tracks and started chasing defendant down the street. Second, defendant claimed he was the innocent victim of an assault by two young teenage boys, who attacked him without provocation. Yet when the police arrived, it was defendant who ran away, jumping a fence and dropping a knife along the way. Defendant offered no sensible explanation for why he did not engage the officer and report the boys’ unlawful behavior. Third, defendant failed adequately to explain why he was housed in “detox” if, as he claimed, he had not been drinking.
It was undisputed that defendant grabbed Nicholas with such force that he inflicted red scratches or bruise marks on his shoulder and arm.
Because the jury could infer that these portions of defendant’s testimony were implausible and/or lacking in satisfactory explanation, CALCRIM No. 361 was proper.
Even if the instruction had been improper, it could not have been prejudicial. Error in giving this instruction is only prejudicial if it is reasonably probable a more favorable verdict would have resulted had it not been given. (People v. Saddler (1979) 24 Cal.3d 671, 683-684.) The instruction does not direct the jury to draw an adverse inference and contains other portions favorable to the defense, suggesting when it would be unreasonable to draw the inference and cautioning that the failure to deny or explain evidence does not create a presumption of guilt. (People v. Ballard (1999) 1 Cal.App.4th 752, 756 [interpreting CALJIC No. 2.62].) Accordingly, we find no reasonable likelihood of a different verdict had the instruction not been given.
VI. Failure to Instruct on Brandishing
Defendant next claims the trial court erred in failing to instruct the jury on the misdemeanor offense of brandishing a deadly weapon (§ 417, subd. (a)(1)) as a lesser related alternative to the charged felony offense of ADW.
“A trial court is required to instruct on any lesser included offenses that are supported by the evidence.” (People v. Steele (2000) 83 Cal.App.4th 212, 217 (Steele).) However, as defendant properly acknowledges, brandishing is not a lesser included offense of ADW; it is a lesser related offense. (People v. Birch (1969) 3 Cal.App.3d 167, 176.)
Absent a stipulation of the parties or a party’s failure to object to a proposed lesser related offense instruction, a trial court cannot instruct on lesser related offenses. (People v. Birks (1998) 19 Cal.4th 108, 136, fn. 19; Steele, supra, 83 Cal.App.4th at p. 217.) Thus, defendant’s argument that the trial court should have given the instruction sua sponte is palpably wrong.
We also reject defendant’s corollary claim that trial counsel’s failure to request the instruction demonstrates ineffective assistance of counsel. There is a “‘“strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’”’” (People v. Burnett (1999) 71 Cal.App.4th 151, 180.) Here, counsel could have decided not to request a brandishing instruction because it was inconsistent with defendant’s testimony that he never brandished, swung or threatened the boys with the knife, but simply picked it up off the ground and put it in his pocket. Because there is a reasonable tactical explanation for counsel’s omission, the claim of ineffective assistance fails.
VII. Substantial Evidence
Defendant challenges the sufficiency of the evidence to support both convictions. We take each one up individually.
A. Assault with a Deadly Weapon
Defendant claims there is no substantial evidence to support the ADW conviction because the evidence shows, at most, that he brandished the knife, not that he assaulted anyone with it. He is wrong again.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--that is, evidence that is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) “‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.”’” (People v. Bean (1988) 46 Cal.3d 919, 933.)
Nicholas testified that after grabbing his shirt and ripping it, defendant reached into his back pocket, pulled out a knife with a four- or five-inch blade and swung it twice with a crossing motion from a distance of two to three feet, while yelling “I’ll kill you motherfucker.”
“‘An assault occurs whenever “‘[t]he next movement would, at least to all appearance, complete the battery.’” [Citation.] Thus, assault “lies on a definitional . . . continuum of conduct that describes its essential relation to battery: An assault is an incipient or inchoate battery; a battery is a consummated assault.”’” (People v. Chance (2008) 44 Cal.4th 1164, 1170.)
A reasonable jury could easily conclude that defendant’s conduct in swinging a long steak knife at Nicholas from relatively close range while threatening to kill him was sufficient evidence to constitute assault with a deadly weapon.
B. Criminal Threats
While not denying the testimony elicited by the prosecution witnesses that he threatened to stab, kill and shoot his victims, defendant nevertheless argues that his conviction for making criminal threats lacks evidentiary support because these words were uttered in lawful self-defense. The claim is frivolous.
Defendant’s argument is obviously based on his own testimony. But the test is whether there is substantial evidence, contradicted or not, to support the jury’s verdict. Defendant’s claim thus turns the standard of review on its head. Moreover, the doctrine of self-defense comes into play where an individual reasonably believes he or she is in imminent danger of suffering bodily injury or being touched unlawfully and thus “reasonably believed that the immediate use of force was necessary to defend against that danger.” (CALCRIM No. 3470, ¶ 2., italics added.) However, the offense of uttering criminal threats does not entail the use of force, only words. Defendant cites no authority that one can successfully defend a charge of making criminal threats by claiming self-defense.
VIII. Instructional Error
Defendant contends that the trial court erred in failing, sua sponte, to instruct the jury that in order for him to be guilty of the criminal threats charge, there had to be a union of act and intent (§ 20) and that the threats not be uttered in lawful self-defense.
The argument is forfeited. “‘A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.’” (People v. Sully (1991) 53 Cal.3d 1195, 1218, quoting People v. Lang (1989) 49 Cal.3d 991, 1024.)
Nor was counsel ineffective for failing to request the supplementary language defendant conjures. As noted, defendant cites no authority that a defendant may successfully raise self-defense to a charge of making criminal threats in violation of section 422. Further, the jury was given CALCRIM No. 252, which told them every charged crime required proof of the union of act and criminal intent.
IX. Cumulative Prejudice
Since our review of the record has disclosed no error warranting reversal, whether considered separately or cumulatively, we also reject defendant’s claim of cumulative prejudice. (People v. Roybal (1998) 19 Cal.4th 481, 531.)
X. Truth of the Strike Priors
Defendant contends the evidence was insufficient to show his four felony convictions, all of which occurred in the state of New Jersey, constituted “strikes” or prior serious felonies for purposes of enhancement under section 667, subdivision (a)(1).
“Penal Code section 667, subdivision (a)(1) provides for a sentence enhancement for each prior conviction for ‘any offense committed in another jurisdiction which includes all of the elements of any serious felony’ under California law. Under the Three Strikes law, a prior conviction from another jurisdiction constitutes a strike if it is ‘for an offense that includes all of the elements of the particular felony as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.’ (Pen. Code, §§ 667, subd. (d)(2), 1170.12, subd. (b)(2).) Thus, the prior foreign conviction ‘must involve conduct that would qualify as a serious [or violent] felony in California.’ (People v. Avery (2002) 27 Cal.4th 49, 53.) ‘To make this determination, the court may consider the entire record of the prior conviction as well as the elements of the crime.’ (Ibid.) If the record insufficiently reveals the facts of the prior offense, the court must presume the prior conviction was for the least offense punishable under the foreign law.” (People v. Jenkins (2006) 140 Cal.App.4th 805, 810 (Jenkins).)
A. The 1980 Robbery
Citing People v. Nguyen (2000) 24 Cal.4th 756, 763 (Nguyen), defendant contends his 1980 conviction for first degree robbery did not qualify as a serious felony in California because New Jersey’s robbery statute contains a more expansive definition of the crime than California’s. Without challenging that premise, the Attorney General claims the prior was proven because the robbery was of the first degree, which included several acts which could have qualified as strikes. Defendant has the better argument.
In 1979, New Jersey adopted the Model Penal Code definition of robbery. New Jersey Statutes Annotated section 2C:15-1 provides:
“a. Robbery defined. A person is guilty of robbery if, in the course of committing a theft, he:
“(1) Inflicts bodily injury or uses force upon another; or
“(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or
“(3) Commits or threatens immediately to commit any crime of the first or second degree.
“An act shall be deemed to be included in the phrase ‘in the course of committing a theft’ if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission.
“b. Grading. Robbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon.” (Italics added.) (N.J. Laws 1979, ch. 178, § 28, eff. Sept. 1, 1979; amended by N.J. Laws 1981, ch. 22, § 1, eff. Feb. 6, 1981.)
The 1981 amendment added the words “or uses force,” in subdivision (a)(1), a minor change that does not affect the issue before us. (Historical and Statutory Notes, West’s N.J. Stat. Ann. foll. § 2C:15-1.)
As the California Supreme Court noted in Nguyen, the New Jersey statute represented a “‘“clean break with the past,”’” broadening the common law definition of the crime, including abolition of the requirement that the victim own or possess the stolen property. (Nguyen, supra, 24 Cal.4th at pp. 763-764, quoting State v. Mirault (N.J. 1983) 457 A.2d 455, 457 (Mirault).) On the other hand, “California has not adopted the Model Penal Code definition of robbery. Section 211 reflects, instead, the traditional approach that limits victims of robbery to those persons in either actual or constructive possession of the property taken.” (Nguyen, at p. 764.)
There is a second major difference. Penal Code section 211 requires not only gaining possession of the victim’s property but asporting or carrying away the loot. (People v. Cooper (1991) 53 Cal.3d 1158, 1165.) New Jersey Statutes Annotated section 2C:15-1 eliminated the element of asportation. (State v. Farrad (N.J. 2000) 753 A.2d 648, 654.)
The documents submitted by the prosecution did not establish that the victim owned or controlled the property that was stolen, or that defendant carried away the loot.
The Attorney General’s argument that defendant’s conviction of first degree robbery suggests he may have committed additional acts that qualified as serious felonies (N.J. Stat. Ann. § 2C:15-1, subd. (b), quoted ante), is unpersuasive. The information alleged only that defendant “was on July 14, 1980, . . . convicted of the crime of robbery, a serious felony, within the meaning of section 667[, subdivision] (a) of the Penal Code.” (Italics added.) No claim was made in the trial court that the robbery qualified as a different serious felony in California. Accordingly, the true finding as to the 1980 prior must be reversed.
The People may retry the truth of this charge upon securing further evidence establishing that the 1980 robbery qualified as a serious felony within the meaning of section 211. (Jenkins, supra, 140 Cal.App.4th at p. 816.)
B. 1976 Atrocious Assault
The prosecution introduced evidence that in 1976 defendant pleaded guilty and was convicted in a New Jersey court of atrocious assault and battery. The indictment for this count alleges that on December 22, 1975, defendant “did commit an atrocious assault and battery by maiming and wounding Julian Perez.” The prosecutor successfully argued that this conviction was substantially equivalent to battery with serious bodily injury within the meaning of Penal Code section 243, subdivision (d). That subdivision provides that “[w]hen a battery is committed against any person and serious bodily injury is inflicted on the person,” the battery is punishable by incarceration in the county jail or in state prison. (Italics added.) “Serious bodily injury” is defined in section 243, subdivision (f)(4) as “a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement.” (Italics added.) “Injury” is defined in subdivision (f)(5) as “any physical injury which requires professional medical treatment.”
At the time, New Jersey Statutes Annotated former section 2A:90-1 provided: “Any person who commits an atrocious assault and battery by maiming or wounding another is guilty of a high misdemeanor.” (State v. Crumedy (N.J.Super.Ct.App.Div. 1976) 364 A.2d 546, 548 (Crumedy I).)
We disagree that the New Jersey atrocious assault conviction met all the elements of the California offense of battery with serious bodily injury. First, the bar for committing atrocious assault in New Jersey is significantly lower than that for felony battery in California. The term “serious bodily injury” in California’s Penal Code section 243 is defined strictly in terms of the severity of the injury sustained. The injury must at least be one that requires professional medical treatment and it must result in “serious impairment” of a victim’s physical condition.
On the other hand, in New Jersey the severity of the injury is only “one factor” to be taken into account, “in conjunction with the character of the assault made,” in determining whether there is sufficient evidence to support an atrocious assault conviction. (State v. Edwards (N.J. 1958) 146 A.2d 209, 211-212 (Edwards).)
Thus, in Crumedy I, supra, 364 A.2d 546 the defendant, posing as a physician, inserted needles into the arms of three victims under the false pretense of taking blood samples for a medical diagnosis. The Superior Court of New Jersey, Appellate Division, rejected his contention that “the facts do not spell out the requisite elements of the crime of atrocious assault and battery, but rather rise no higher than the . . . offense of simple assault and battery.” (364 A.2d at p. 548.) The court held that the severity of the injury was merely one factor to be considered in determining whether defendant was guilty of the crime. The court found that “the outrageous character of defendant’s acts . . . underlined by the cruel advantage taken by him of individuals who may not have had the education or sophistication to repulse his advances,” was sufficient to warrant a conviction for atrocious assault. (Id. at p. 549, italics added.) Crumedy I was affirmed by the New Jersey Supreme Court on a tie vote. (State v. Crumedy (N.J. 1978) 387 A.2d 357, 358 (Crumedy II).) As Justice Pashman’s concurring opinion explained, the crime of atrocious assault depends on a consideration of multiple factors, which “stand in an inverse relationship--the more heinous the assaultive act, the less substantial must the injuries be to support a conclusion that the requisite element of viciousness exists. Similarly, less outrageous conduct may nevertheless constitute an ‘atrocious’ assault and battery where the ensuing injuries are significant.” (Crumedy II, at p. 358.)
Under no circumstances could the defendant in Crumedy have been convicted of battery with serious bodily injury in California. There was no evidence that any of the victims even required medical attention, much less that they sustained “serious physical impairment.”
The Attorney General discounts Crumedy I on the ground that it was decided after defendant was convicted and represented a significant change in the law. Not so. Nothing in Crumedy I or in the New Jersey Supreme Court’s affirmance of it (Crumedy II) disavows the traditional standard set forth in Edwards, supra, 146 A.2d at pages 211-212.
Nor could the atrocious assault conviction have qualified as a strike under section 1192.7, subdivision (c)(8), which stipulates that a serious felony is any felony in which the defendant “personally inflicts great bodily injury on any person, other than an accomplice.”
The indictment for atrocious assault names both defendant and a codefendant. However, in order to qualify as a strike, defendant must have “personally inflict[ed]” great bodily injury. This element requires that a defendant must “actually” and “directly perform the act that causes the physical injury.” (People v. Cole (1982) 31 Cal.3d 568, 572, 579.) The injury-producing act must be done by the defendant “himself,” and not by someone who merely “aided or abetted the actor directly inflicting the injury.” (Id. at p. 572; see also id. at p. 575, fn. 4.) The prosecution adduced no evidence indicating that defendant, rather than his confederate, personally inflicted great bodily injury. While the court may look to the entire record of the conviction to determine the substance of the prior foreign conviction, when “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.” (People v. Guerrero (1988) 44 Cal.3d 343, 354-355 (Guerrero).) The “strike” finding as to defendant’s 1976 atrocious assault conviction must be reversed. (But see fn. 5, ante.)
C. Two 1973 Convictions
Failure to allow live testimony
The prosecution introduced certified records showing that in 1973, defendant was convicted of rape while armed, and armed robbery in a New Jersey criminal court. Defense counsel responded that his client informed him that the guilty pleas for those convictions had been overturned. However, counsel admitted he could not find any records supporting this assertion. The prosecutor noted that she had asked the State of New Jersey for “any and all documentation that they had for Larry Robinson,” and the custodian of records had produced nothing to suggest the convictions had been overturned or invalidated.
The court rejected defense counsel’s argument that reversal could be inferred from the fact that defendant apparently had not served his full sentence, since he was “pick[ed] up” on another offense in December 1975. Observing that it was “not uncommon” at that time for defendants serving indeterminate terms to be released on parole after serving only a portion of their sentences, the court found the 1973 strike prior to be true. The court indicated that if documentation could be found that the convictions had been vacated, appellate counsel could raise the issue in the Court of Appeal.
Defendant argues that he was denied his state and federal constitutional rights by the court’s failure to let him testify that his 1973 convictions had been overturned, claiming that his assertion was supported by circumstantial evidence.
Defendant’s claim has been forfeited, since no request was made in the trial court to allow him to testify. (People v. Saunders (1993) 5 Cal.4th 580, 589-590.) Defendant’s constitutional argument is equally noncognizable, for failure to raise it below. (People v. Benson (1990) 52 Cal.3d 754, 788.)
In any event, defendant’s argument is contrary to controlling law. In a proceeding to determine whether a conviction constitutes a serious felony or strike prior, neither the prosecution nor the defense may present live testimony. The trier of fact must rely strictly on court records in making this determination. (Guerrero, supra, 44 Cal.3d at p. 355; People v. Bartow (1996) 46 Cal.App.4th 1573, 1581.)
1. 1973 conviction--rape while armed.
Defendant claims that his 1973 conviction of “Rape While Armed” did not qualify as a strike because the New Jersey and California rape statutes define different crimes.
At the time, New Jersey Statutes Annotated former section 2A:138-1 provided: “Any person who has carnal knowledge of a woman forcibly against her will, or while she is under the influence of any narcotic drug, or who, being of the age of 16 or over, unlawfully and carnally abuses a woman-child under the age of 12 years, with or without her consent, is guilty of a high misdemeanor and shall be punished by a fine of not more than $5,000, or by imprisonment for not more than 30 years, or both; or who, being of the age of 16 or over, unlawfully and carnally abuses a woman-child of the age of 12 years or over, but under the age of 16 years, with or without her consent, is guilty of a high misdemeanor and shall be punished by a fine of not more than $5,000, or by imprisonment for not more than 15 years, or both.” (State v. Thompson ( N.J.Super. Ct. Law Div. 1978) 392 A.2d 678, 679-680.)
The indictment, which may be used to establish the truth of the priors (People v. Hayes (1992) 6 Cal.App.4th 616, 624), alleged that defendant “had carnal knowledge of [the female victim] forcibly against her will.” New Jersey has interpreted “carnal knowledge” to mean that there be forcible sexual penetration by the sex organ of the male into the sex organ of a female without her free and conscious consent. (State v. Smith ( N.J.Super. Ct. Law Div. 1977) 372 A.2d 386, 388-389, affd. (N.J.Super.Ct.App.Div. 1979) 404 A.2d 331, reversed on different grounds in State v. Smith (N.J. 1981) 426 A.2d 38, 45.)
“Rape” is an enumerated “serious felony” under the three strikes law. (§ 1192.7, subd. (c)(3).) Rape is an act of sexual intercourse accomplished against the will of a nonspouse victim by means of force, violence, duress or threat of bodily injury. (§ 261, subd. (a)(2).) This definition is substantially equivalent to New Jersey’s “forcible carnal knowledge” definition under New Jersey Statutes Annotated former section 2A:138-1.
Defendant also points out that section 261 requires that the victim not be the spouse of the perpetrator, while the New Jersey statute has no such element. The observation proves nothing. Spousal rape is also a felony in California (§ 262) and section 1192.7, subdivision (c)(3) encompasses “rape” of any kind. (See People v. Myers (1993) 5 Cal.4th 1193, 1200 [crimes specified in section 1192.7, subdivision (c) must be construed as referring not to specific criminal offenses, but to the criminal conduct described therein]; People v. Jackson (1985) 37 Cal.3d 826, 832.)
Finally, the judgment record showing that defendant was guilty of rape “while armed,” its characterization as a first degree sexual assault and the language of the indictment using the term “carnal knowledge” rather than “carnal abuse,” allowed the trial court to determine that the rape conviction was not based on sexual molestation of a minor. The record need only contain evidence from which the trier of fact can reasonably presume the conviction included all of the required elements. (People v. Riel (2000) 22 Cal.4th 1153, 1205-1206; People v. Johnson (1989) 208 Cal.App.3d 19, 24.)
The terms “forcibly,” “against [the] will,” and “while armed,” also rule out the possibility that defendant was convicted under that portion of New Jersey Statutes Annotated former section 2A:138-1 describing intercourse while the victim “is under the influence of any narcotic drug,” a crime which is analogous, but not identical, to California’s section 261, subdivision (a)(3).
2. 1973 conviction--robbery.
Defendant was convicted of robbery in 1973, before New Jersey adopted the broad, Model Penal Code definition of robbery. In 1973, robbery was defined in New Jersey as taking a person’s property “by violence or putting him in fear.” (Mirault, supra, 457 A.2d at p. 458, quoting N.J. Stat. Ann. former § 2A:141-1 [repealed in 1979].) California’s section 211 defines robbery as “taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” These two statutes define essentially identical crimes.
Defendant finds a material distinction because New Jersey contains no requirement that the property be taken “against the will” of the victim. He hypothesizes that one could be guilty of robbery in New Jersey that would only constitute extortion in California, since extortion is a theft with the consent of the victim. However, the indictment alleges that defendant “being armed with and having in his possession a certain firearm, to wit, a revolver, then and there did unlawfully, forcibly and feloniously take from the person of [the victim] money . . . ” and that this act was “against the will of [the victim] by violence or putting her . . . in fear.” (Italics added.) This language established that the robbery was a forcible, nonconsensual taking of the victim’s property.
Extortion, a specific intent crime, “is the obtaining of property from another, with his consent . . . induced by a wrongful use of force or fear . . . .” (§ 518; People v. Umana (2006) 138 Cal.App.4th 625, 641.)
Defendant also points out that New Jersey requires a “reasonable apprehension” that force will be used, whereas California requires the actual use of force or fear. We do not see how this observation helps him. Before 1978, New Jersey law provided that “[t]o constitute robbery there must be actual violence, or such a demonstration or threats as will create reasonable apprehension of bodily injury if the victim resists.” (State v. McDonald (1916) 89 N.J.L. 421, 422, italics added.) However, to commit robbery in California the defendant need only place the victim in actual fear, regardless of whether it is reasonable. This means New Jersey’s robbery statute contained a more rigorous fear element than that of California. It follows that if defendant induced fear under the New Jersey statute, he certainly satisfied the fear element of section 211.
XI. Section 654
Defendant contends his conviction for making criminal threats should be stayed pursuant to section 654 because the threat and the assault were part of one continuous transaction, regardless of which “threat” the jury relied on in convicting defendant of violating section 422. We disagree.
Section 654 provides in part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a).) “[S]ection 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction.” (People v. Perez (1979) 23 Cal.3d 545, 551.)
“If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (People v. Perez, supra, 23 Cal.3d at p. 551.) On the other hand, “if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.)
By imposing concurrent sentences on the criminal threat and the assault with a deadly weapon counts, the trial court impliedly found that defendant had separate objectives. We review the finding under the substantial evidence test (People v. Goodall (1982) 131 Cal.App.3d 129, 147-148), viewing the evidence in a light most favorable to the People and presuming the existence of every fact the trier could reasonably deduce therefrom (People v. Holly (1976) 62 Cal.App.3d 797, 803).
Applying this standard, we cannot disturb the court’s finding. The court could reasonably conclude that defendant’s intent in swinging the knife at Nicholas was to inflict injury, whereas his intent in uttering murderous threats was to frighten and intimidate. No error appears on this point.
DISPOSITION
We reverse the trial court’s findings that defendant’s two New Jersey convictions for 1980 robbery and 1976 atrocious assault and battery constituted strikes. We remand to the trial court to provide the People the option to retry these strike allegations. (People v. Rodriguez (1999) 69 Cal.App.4th 341, 352-353.) In all other respects the judgment is affirmed. If one or both of the reversed strike allegations is not retried or is found not true, the trial court shall resentence defendant accordingly.
We concur: SIMS, Acting P. J., DAVIS, J.