Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F06269
RAYE, P. J.Defendant Raul Ruby Rositas agreed to enter a negotiated plea of no contest to active participation in a criminal street gang. He also admitted a prior felony conviction in 2000; the parties agreed the trial court could determine whether this was for a “serious” felony (thereby doubling the lower-term sentence to which the parties stipulated). (Pen. Code, § 667, subds. (d) & (e) [undesignated section references are to this code].)
The parties submitted written memoranda on the issue. The trial court issued a lengthy order, in which it ruled that the record of conviction showed the prior conviction was for a serious felony. The trial court imposed the enhanced negotiated sentence. It agreed to issue a certificate of probable cause to allow defendant to renew the issue on appeal.
For reasons not specified, the court limited defendant’s conduct credits to 15 percent of his custody credits, contrary to the recommendation in the probation report of two days for every four-day period of custody. (§ 4019, former subds. (b)(2), (c)(2) & (f) [Stats. 2009, 3d Ex. Sess., ch. 28, § 50]; see § 2933, subd. (e)(2).) The abstract of judgment indicates this was pursuant to section 2933.1, which limits conduct credits for defendants convicted of violent felonies within the meaning of section 667.5, subdivision (c).
Defendant now pursues the issue on appeal. We shall affirm the judgment as modified.
BACKGROUND
The factual basis for the gang offense is not pertinent to the issue on appeal. We therefore omit it beyond noting that it involved a fight between gangs in the county jail.
Defendant admitted an allegation that he had a conviction in San Joaquin County in 2000 for committing a battery that resulted in serious bodily injury. The issue submitted to the trial court was whether defendant was convicted of a felony in which he “personally inflict[ed] great bodily injury on any person[] other than an accomplice” (§ 1192.7, subd. (c)(8)), which would make it a serious felony subjecting him to recidivist treatment under section 667, subdivisions (d) and (e).
The parties submitted a copy of the transcripts of the hearings in the San Joaquin County proceedings at which defendant had entered his negotiated plea of no contest, and a transcript of the San Joaquin County preliminary hearing that was the stipulated basis for the plea. (As these were part of the proceedings leading to the conviction, it was proper for the trial court to consider them in determining the issue of whether it was a serious felony. (People v. Trujillo (2006) 40 Cal.4th 165, 177, 180 (Trujillo); People v. Woodell (1998) 17 Cal.4th 448, 454-456 (Woodell).))
At the preliminary hearing, a prison guard at Deuel Vocational Institute testified that he had observed defendant and another inmate striking the victim, who was crouched down and backed into a corner against the fence trying to cover himself up. Disregarding several verbal orders to stop, the two continued to beat the victim until the guard fired a round of rubber “BB” shot at them and they disbursed. The victim lay against the fence in a crouched position, unable to get up. A guard who responded to the yard found that the victim’s face was covered with blood, and he could not walk on his own. When the victim was treated later in the prison infirmary, there was swelling below his eye and cuts on his face. A doctor told the guard the wounds required 18 stitches, and some of them would leave the victim with permanent scars. The magistrate held defendant to answer on count two for a charge of assault with a deadly weapon by a prisoner, with personal infliction of great bodily injury.
When the parties appeared for trial assignment before Judge Hammerstone, the prosecutor announced that defendant had agreed to a negotiated disposition. Judge Hammerstone granted the prosecutor’s motion to amend count two to allege battery with serious bodily injuries, asking whether it was considered a serious felony. The prosecutor believed this was an open question. When Judge Hammerstone asked whether defendant waived his right to trial, defendant requested another day to make his decision.
He was wrong. People v. Moore (1992) 10 Cal.App.4th 1868, 1871 found that battery with serious bodily injury came within the meaning of section 1192.7, subdivision (c)(8) as a serious felony for purposes of the five-year enhancement in section 667, subdivision (a), because serious bodily injury is essentially the same as great bodily injury. (Accord, People v. Arnett (2006) 139 Cal.App.4th 1609, 1613-1615 [court can impose five-year enhancement for battery conviction even though jury failed to reach verdict on allegation of great bodily injury as to another count]; see People v. Hawkins (2003) 108 Cal.App.4th 527, 531-532 (Hawkins) [finding battery cannot be a violent felony (§ 667.5, subd. (c)(8)), but noting it is a serious felony].)
On the following day, the San Joaquin County prosecutor agreed to dismiss the other count in exchange for defendant’s plea to the battery, with a sentence of credit for time served and a five-year period of informal probation. The parties stipulated to use of the preliminary hearing transcript as a basis for the plea. Defendant then waived his trial rights and entered his plea, which the court (Judge Garrigan presiding) found was knowing and voluntary. Neither the parties nor Judge Garrigan expressly made any promises or gave any advisements regarding the status of the conviction as a serious felony, nor did defendant admit any allegation that it was a serious felony. (§ 969, subd. (f).)
Defense counsel in the present matter subsequently filed a declaration from the San Joaquin County prosecutor. The latter stated that his purpose for amending the charge from assault by a prisoner to battery with serious bodily injury was to avoid its future classification as a serious felony, since assault by a prisoner would have been a serious felony in all circumstances.
In its order, the present trial court first concluded that as a matter of law, the element of serious bodily injury in section 243, subdivision (d) was substantially similar to great bodily injury and thus the conviction could qualify as a serious felony if defendant had personally inflicted it. Finding the preliminary hearing transcript was properly part of the record of conviction because defendant had stipulated to its being the factual basis for the plea, the present trial court concluded that the record established defendant had in fact personally inflicted the great bodily injury as part of a group beating.
Defendant subsequently filed the transcript of a December 2009 hearing for “clarification” of the sentence imposed in defendant’s prior San Joaquin County case. Judge Garrigan, defense counsel, and the prosecutor recited their understanding that the battery was not intended to have the effect of a serious felony in future cases. Under their customary practice, they would have advised defendant expressly of this consequence had that been their intent.
At sentencing, the present trial court concluded that the evidence of the intent of the parties and court in San Joaquin County was outside the record of the prior conviction and thus not admissible (recommending that defendant’s course of relief from any apparent injustice would be through a writ of habeas corpus directed to the San Joaquin County court). It adhered to its finding that the prior conviction was a serious felony.
DISCUSSION
I
Defendant contends he did not admit that the injuries in his prior conviction came within the meaning of great bodily injury, and the factual basis for his plea is insufficient to establish great bodily injury (pointing out that the evidence of the victim’s need for stitches and the likelihood of scarring was a hearsay opinion (People v. Thoma (2007) 150 Cal.App.4th 1096, 1103)). He acknowledges the authority that equates serious and great bodily injury as a matter of law (see fn. 1, ante; accord, People v. Hawkins (1993) 15 Cal.App.4th 1373, 1375 (Hawkins) [cannot enhance battery with a finding of great bodily injury because that is an element of battery]; People v. Kent (1979) 96 Cal.App.3d 130, 136-137 [proper to use definition of serious bodily injury in battery statute as instruction on enhancement for great bodily injury].) However, he relies on the holding in People v. Taylor (2004) 118 Cal.App.4th 11, 25-26 (Taylor), which declined to find that a battery with serious bodily injury was a present serious felony because the jury had failed to sustain enhancements on other counts for great bodily injury. Taylor, however, presented idiosyncratic circumstances: there had been instructions and argument suggesting to the jury that there was a distinction in degree between great and serious bodily injury, and thus Taylor felt compelled to give effect to the jury’s disparate treatment of the two concepts rather than merely treat them as inconsistent verdicts.
Taylor is thus inapposite to the present circumstances. We are not called upon to determine the evidentiary sufficiency of an injury finding, as in Taylor-defendant necessarily admitted all the elements of battery with serious injury in his plea, among which is infliction of great bodily injury. (Hawkins, supra, 15 Cal.App.4th at p. 1375.) The hearsay nature of the proof of the extent of the victim’s injuries in 2000 is not of any consequence as a result.
II
Defendant next correctly argues that his plea of itself did not admit his personal infliction of the injuries. (People v. Bueno (2006) 143 Cal.App.4th 1503, 1508.) He then identifies what he perceives as shortcomings in the officer’s testimony at the preliminary hearing regarding his observation of defendant’s participation in the beating of the victim in concert, asserting this made the evidence insufficient. However, the officer’s distance from the melee and his failure to explain the basis on which he recognized defendant simply are questions about the weight of the testimony, not its sufficiency. This does not establish the necessary "inherent improbability" (as a result of being false on its face or being physically impossible) that would allow us to disregard the testimony on appeal. (People v. Mayberry (1975) 15 Cal.3d 143, 150.) Since this is evidence of defendant’s active participation in a group beating, he properly was found to have personally inflicted the resulting injuries even though he may not have actually inflicted the particular wounds. (People v. Modiri (2006) 39 Cal.4th 481, 485-486.)
III
Finally, defendant asserts we must consider the evidence of the intent of the parties to the 2000 plea bargain as part of the record of the conviction in determining whether it was a serious felony. He claims this shows the San Joaquin County prosecutor had conceded the lack of great bodily injury at that time, which estops the Sacramento County prosecutor from arguing to the contrary.
He purports to find a basis for this premise in People v. Watts (2005) 131 Cal.App.4th 589, 596-597 (Watts), in which a defendant had entered his plea to his prior conviction at a time when its elements were uncertain; as a result, Watts could not determine “what the pleader intended to allege and what Watts intended to admit at that time.” (As a result, Watts was required to assume the plea admitted only the minimum number of elements, which was insufficient to establish in the current proceedings that it was a serious felony.)
Once again, the case is inapposite. The intent of the parties to the plea did not play any role in the analysis in Watts beyond the mere turn of phrase to which defendant wishes to tether his argument. He otherwise does not explain how a transcript and a declaration generated almost a decade after the proceedings leading to his conviction-which do not reflect the nature or basis of the conviction and instead attest only to the legal interpretation the San Joaquin County court and parties placed on it-can properly be part of the record of conviction. (Trujillo, supra, 40 Cal.4th at p. 179 [excerpts from record of conviction must reflect nature of crime, which does not include admissions to probation officer after conviction]; Woodell, supra, 17 Cal.4th at p. 456 [new evidence outside the record of the original proceedings cannot be considered].)
Although we must, of course, give effect to the intent of the contracting parties to the plea agreement, this principle applies only to express terms (or those necessarily implicated). (In re Uriah R. (1999) 70 Cal.App.4th 1152, 1157.) Other than tangentially, the question of the status of the conviction as a serious felony was not addressed in the negotiations or in any of the terms of the plea. Contrary to defendant’s assertion, there certainly was not any express “concession that [his] crime was nothing more than a violation of Section 243” at that time. That the court and parties may have had unspoken assumptions about the future legal effect of their actions is not relevant to our interpretation of it. (1 Witkin, Summ. of Cal. Law (10th ed. 2005), Contracts, § 744, p. 832.) Nor is there anything ambiguous about the plea’s terms such that we could consider the 2009 “clarification.” As a result, there was not any type of pledge that “estopped” the present prosecutor from having sought to establish that the prior conviction was for a serious felony.
Defendant’s reliance on People v. Castillo (2010) 49 Cal.4th 145 (which involved the enforcement of the express terms of a plea bargain) and People v. Maestas (2006) 143 Cal.App.4th 247 (which held that a trial court could not disregard a negotiated prior conviction for second degree burglary and determine that it was in the first degree based on the underlying record of conviction) is therefore misplaced.
We do not determine whether defendant has any collateral means of seeking relief. We find only that in connection with the present appeal his prior conviction was properly treated as a serious felony for purposes of sentencing because it involved the personal infliction of great bodily injury.
Although the parties have not brought it to our attention, we cannot find any basis for limiting the conduct credits to 15 percent. While his former and present convictions are serious felonies (§ 1192.7, subds. (c)(8) & (c)(28)), the prior battery conviction is not a violent felony because it did not include a separate enhancement for personal infliction of great bodily injury (Hawkins, supra, 108 Cal.App.4th at pp. 531-532; § 667.5, subd. (c)(8)), and the present conviction for gang participation did not involve either extortion or witness tampering (§ 667.5, subds. (c)(19) & (c)(20)). We will accordingly direct the trial court to issue a new abstract of decision awarding defendant 266 days of conduct credit.
If the People are aggrieved because there is some other basis for limiting defendant’s conduct credit that we have overlooked, they may petition for rehearing.
DISPOSITION
The judgment is affirmed. The trial court shall prepare an amended abstract of decision awarding defendant 266 days of custody credit and forward it to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON, J., BUTZ, J.