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People v. Roy

California Court of Appeals, Third District, Sacramento
Mar 13, 2008
No. C054840 (Cal. Ct. App. Mar. 13, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. DAVID STEWART ROY, Defendant and Appellant. C054840 California Court of Appeal, Third District, Sacramento March 13, 2008

NOT TO BE PUBLISHED

Super. Ct. No. 05F08588

ROBIE, J.

A jury found defendant David Stewart Roy guilty of second degree robbery and assault with a firearm. The jury also found true an enhancement for personal use of a firearm in connection with the robbery conviction and three prior felony convictions. The court sentenced him to an aggregate term of 15 years to life, plus 25 years to life. Defendant appeals.

FACTUAL AND PROCEDURAL BACKGROUND

We omit the facts surrounding defendant’s current conviction because they are not relevant to the resolution of this appeal.

In addition to the robbery and assault charges, the information alleged that defendant had three prior strikes -- a 1992 juvenile adjudication for robbery and two 1995 federal convictions for bank robbery.

The issue of defendant’s prior convictions was tried to the jury along with the current offenses. As proof of defendant’s 1995 strike convictions, the People introduced a certified copy of the “Judgment Including Sentence Under the Sentencing Reform Act” from the United States District Court, Eastern District of California, which states that in 1995 appellant pled guilty to two counts of an offense described as “Aiding and Abetting Armed Bank Robbery” in violation of 18 U.S.C. section 2113(a) and (d), and was committed to federal prison for a term of 156 months. The judgment further provides that appellant pled guilty to “Use of a Firearm During a Crime of Violence” in violation of 18 U.S.C. section 924(c)(1).

After reviewing the evidence, the jury found the prior conviction allegations true. The court then found the convictions were “strikes” and, as a result, sentenced defendant to an aggregate term of 15 years to life, plus 25 years to life. Defendant appeals.

Defendant contends the evidence was insufficient to support the finding that his 1995 prior convictions constituted strikes and, thus, he was denied due process of law. Defendant also contends it was error for the trial court to rely on a prior juvenile adjudication as a strike in order to enhance his sentence. Finding neither of defendant’s arguments to have merit, we shall affirm the judgment.

DISCUSSION

I

Prior Federal Convictions

Defendant argues substantial evidence does not support the conclusion that his prior convictions for aiding and abetting federal armed bank robbery constitute serious or violent felonies under the three strikes law. In support of his argument, defendant asserts the trial court was required to presume on this evidentiary record that his federal convictions were for the least offense punishable under the federal statute, which would not qualify as a serious felony under the three strikes law. (See People v. Leever (1985) 173 Cal.App.3d 853, 872 [burglary type offenses described in the second paragraph of 18 U.S.C. § 2113(a) would not constitute a serious felony for purposes of three strikes law], disapproved on another ground in People v. Ervin (2000) 22 Cal.4th 48, 91.) We disagree.

A court may look to the entire record of a conviction to determine the nature of the prior offense, but “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.) Guererro has been applied to overturn a prior strike finding based on a federal abstract of judgment showing a guilty plea to an offense simply described as “bank robbery” under 18 U.S.C. section 2113(a). (See People v. Jones (1999) 75 Cal.App.4th 616, 631-635.) The court in Jones found the mere reference to “bank robbery” in the federal abstract was insufficiently reliable to overcome the Guererro presumption that the defendant had committed the least offense punishable under 18 U.S.C. section 2113(a). (Jones, at p. 634.)

Here, however, the federal record shows that defendant pled guilty to two counts of “aiding and abetting armed bank robbery” in violation of 18 U.S.C. section 2113(a) and (d). (Italics added.) Use of the term “armed” and reference to subsection (d) which deals with punishment for, among other things, “use of a dangerous weapon or device” provides sufficient evidence to support the finding that these prior convictions could not have been based on the nonstrike offense in the second paragraph of 18 U.S.C. section 2113(a) and instead necessarily included the use of force, fear, and/or intimidation. (United States v. McAvoy (2d Cir. 1978) 574 F.2d 718, 721 [The phrase “‘by the use of a dangerous weapon or device’” must be read, regardless of punctuation, as modifying both the “assault” provision and “‘puts in jeopardy’” the provision of 18 U.S.C § 2113(d)].) Indeed, defendant admitted that he used a firearm during and in relation to the crime of violence he committed in robbing a bank on March 12, 1993. (18 U.S.C. § 924(c)(1)(A).)

The defendant also argues that the definition of a dangerous weapon under 18 U.S.C. section 2113(d) is broader than that under California law because under federal law a dangerous weapon can include a toy gun. In fact, under California law, a toy gun can be considered a dangerous weapon. (People v. Godwin (1996) 50 Cal.App.4th 1562, 1574; see also People v. Hood (1958) 160 Cal.App.2d 121, 122, citing People v. Ward (1948) 84 Cal.App.2d 357; People v. Coleman (1942) 53 Cal.App.2d 18, 29.)

Defendant also argues that his prior convictions cannot be strikes under California law because the federal definition of “use of a dangerous weapon” is broader than California’s, including the mere reference to a weapon, with no requirement that a weapon be shown. Whether defendant showed his weapon or merely made reference to the weapon in order to effectuate his crimes of bank robbery is irrelevant because either would result in the use of force, intimidation, and/or fear.

Accordingly, there is sufficient evidence to sustain the trial court’s finding that defendant’s prior federal convictions constitute serious felonies under California law.

II

Prior Juvenile Adjudication

Defendant also contends the trial court violated his Sixth Amendment right to a jury trial when the court used defendant’s prior juvenile adjudication for robbery to enhance his sentence here. Defendant forfeited this claim because he failed to raise the issue when he was sentenced. (People v. Hill (2005) 131 Cal.App.4th 1089, 1103, citing People v. Saunders (1993) 5 Cal.4th 580, 590 & fn. 6 [issues not raised in the trial court, including constitutional claims under the Sixth Amendment, are subject to forfeiture].) Even if defendant had not forfeited his claim, it fails on the merits.

To support his claim, defendant relies heavily on the decision of the Court of Appeals for the Ninth Circuit in U.S. v. Tighe (9th Cir. 2001) 266 F.3d 1187. Tighe reasons that a prior nonjury juvenile adjudication cannot be used to increase the penalty beyond that authorized for the current offense alone, finding that under Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] a “prior conviction” can be so used only if “obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt.” (Tighe, at p. 1194; see also id. at p. 1197.) This court rejected the Tighe view in People v. Palmer (2006) 142 Cal.App.4th 724, 727. Palmer is supported by the rejection in People v. Black (2007) 41 Cal.4th 799, 819, footnote 8, of the claim that the federal right to jury trial includes the right to a jury determination on prior conviction allegations. We follow Palmer and find the contention of error lacks merit for the reasons given therein.

Defendant further claims he suffered ineffective assistance of counsel at trial because trial counsel failed to object to his sentence on this ground. Trial counsel, however, is not required to “advance meritless arguments . . . merely to create a record impregnable to assault for claimed inadequacy of counsel.” (People v. Jones (1979) 96 Cal.App.3d 820, 827.) Because we find his claim has no merit, trial counsel was not ineffective for failing to raise the issue below.

DISPOSITION

The judgment is affirmed.

We concur: SCOTLAND, P.J., BUTZ, J.


Summaries of

People v. Roy

California Court of Appeals, Third District, Sacramento
Mar 13, 2008
No. C054840 (Cal. Ct. App. Mar. 13, 2008)
Case details for

People v. Roy

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DAVID STEWART ROY, Defendant and…

Court:California Court of Appeals, Third District, Sacramento

Date published: Mar 13, 2008

Citations

No. C054840 (Cal. Ct. App. Mar. 13, 2008)