Opinion
F059833
09-29-2011
THE PEOPLE, Plaintiff and Respondent, v. ERNEST JOSEPH SIMS, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. MF008419A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION AND GENERAL FACTS
On April 30, 2007, appellant Ernest Joseph Sims, who was incarcerated, stroked his erect penis during a conversation with a female officer. After bifurcated trial, a jury found appellant guilty of felony indecent exposure and the court found three prior prison term allegations and two prior strike allegations (for a 1995 aggravated assault conviction and a 2001 battery with serious injury conviction) to be true. (Pen. Code, §§ 314.1, 667.5, subd. (b), 667, subds. (b)-(i), 1170.12, subd. (a).) Appellant was sentenced to 25-years-to-life plus three years.
Unless otherwise specified all statutory references are to the Penal Code.
Appellant contends that the true findings on the prior strike allegations must be reversed because the trial court erroneously relied on inadmissible evidence to prove these convictions qualified as strikes. We agree with appellant. The error is prejudicial because the properly admitted evidence only establishes the base statutory elements of aggravated assault and battery with serious injury, and neither of these crimes is an inherently serious or violent felony. Appellant also raises other claims of evidentiary error which are not persuasive. Finally, appellant argues the trial court infringed his federal constitutional rights by granting his pretrial self-representation motion because Faretta v. California (1975) 422 U.S. 806 (Faretta) was wrongly decided. We are bound to follow Faretta and reject appellant's argument on this basis. We will reverse the true findings on the prior strike allegations and remand for further proceedings. Retrial is permitted. (People v. Barragan (2004) 32 Cal.4th 236, 253-254; Monge v. California (1998) 524 U.S. 721, 734.)
Appellant also argues that the trial court abused its discretion by refusing to dismiss the prior strikes, and that his sentence constitutes cruel and/or unusual punishment under the California and federal constitutions. These issues are rendered moot by our determination that the true findings on the strike allegations must be reversed. Yet, we note that based on the record currently before us, if these points had been addressed on the merits, they would have failed.
FACTS RELATING TO THE PRIOR STRIKE ALLEGATIONS
In relevant part, the information in this case alleged that on or about September 11, 1995, appellant was convicted of violating section 245, subdivision (a)(1) in Los Angeles County case No. VA031725 (the assault conviction). It also alleged that on or about November 8, 2001, appellant was convicted of violating section 243, subdivision (d), in Los Angeles County case No. BA211153 (the battery conviction). The information further alleged that both of these convictions were serious or violent felonies and qualified as prior strikes.
a. The assault conviction.
The following documentary evidence was admitted to prove that the assault conviction qualified as a prior strike: (1) a three count information alleging in count 1 that appellant committed an assault "with a deadly weapon, to wit, bottle, and by means of force likely to produce great bodily injury" and further alleging the offense was a serious felony; (2) the reporter's transcript for the change of plea proceedings during which appellant pled no contest to count 1; (3) a plea form showing a no contest to a violation of "245(a)(1)"; (4) an abstract of judgment describing the offense as "ASSLT/GBI/DW"; (5) a section 969b packet; (6) a certified copy of a California Law Enforcement Telecommunication System (CLETS) printout reflecting this conviction as "245(A)(1) PC-FORCE/ADW NOT FIREARM: GBI LIKELY"; and (7) a postsentence probation report.
The reporter's transcript for the change of plea proceeding in the assault case shows that the parties stipulated to a factual basis for the plea without providing any facts or referencing any document. Appellant did not admit the assault was a serious felony, did not admit weapon use and did not admit personally inflicting great bodily injury.
The probation report summarized the facts of the assault as follows:
"As 48-year-old victim Judson Hayes sat on a bench at the bus stop in the 1500 block of Firestone Blvd., defendant threw a glass bottle, which struckThe probation officer also wrote that "[d]efendant states he did not strike the man with a bottle. Further, he does not know who struck the man."
the victim on the right rear side of his head. The bottle shattered. The victim suffered a two inch laceration on the back side of his head which bled profusely. [¶] Officers responded to the location .... The victim was being treated by paramedics. He pointed to defendant who was standing just south of the bus stop bench, and stated defendant threw the bottle. He did not know why defendant hit him with the bottle. When officers approached defendant, he ran from the location. After a foot chase, defendant sat down on the front porch of a residence [and] was detained without further incident. [¶] A witness told police he observed defendant walk up behind the victim and throw what appeared to be a glass beer bottle, at the back of the victim's head. The witness [said] defendant and the victim [argued] after the incident, however there was no contact prior to the assault. The victim was transported to [a hospital] ... for further treatment."
b. The battery conviction.
The following documentary evidence was admitted to prove that the battery conviction qualified as a prior strike: (1) a three count information alleging in count 1 that appellant committed the crime of mayhem by causing the victim to suffer a split lip and alleging in count 2 that appellant violated section 243, subdivision (d) and personally inflicted great bodily injury upon the victim who was not an accomplice; (2) an abstract of judgment within the section 969b packet reflecting the conviction as "BATTERY W/SERIOUS BODILY INJ" obtained by means of a "plea"; (3) a Federal Bureau of Investigation (FBI) form that characterized the conviction as "BATERY [sic]: SERIOUS BODILY INJ"; (4) the CLETS printout reflecting appellant's conviction as a violation of "243(D) PC-BATTERY WITH SERIOUS BODILY INJURY"; and (5) a preconviction probation report.
The probation report summarized the facts of the battery as follows:
"Defendant hit victim with his fist, resulting in her incurring a split lip. [¶]. . . [¶] Witness, defendant, and victim were all on the couch drinking in the living room of witness' residence. When witness left the room, defendant gave some of the alcohol to her young daughter. [¶] VictimThe probation officer also wrote that the victim told him appellant "followed her outside. As she was walking away 'he came up on me and punched me in the mouth.'" The victim said she received seven stitches to her upper lip and three teeth were chipped. Appellant was not interviewed by the probation officer.
confronted defendant about it whereupon defendant became angry and began yelling at her. Defendant then struck victim in the face with a closed fist and left the location. [¶] Officers observed victim to have several deep cuts on her face, chips to her two front teeth, and a deep cut to the lip. She was then taken to the hospital and received between 7 and 11 stitches. [¶] Victim positively identified defendant in a photo lineup."
c. The trial of the special allegations.
During trial on the special allegations, appellant objected to admission of the probation reports. He argued they were not part of the record of conviction, were unreliable and contained inadmissible multiple hearsay. Appellant argued that the assault conviction did not qualify as a strike because, apart from the probation report, there was no proof that he personally used a deadly weapon during commission of the aggravated assault. He argued the battery conviction did not qualify as a strike because there was no proof that the victim was not an accomplice. The prosecutor urged the court to rely on the dissenting opinion in People v. Trujillo (2006) 40 Cal.4th 165 (Trujillo), and admit the probation reports. The trial court overruled appellant's objections and admitted the probation reports. Then it found both of the prior strike allegations to be true.
During the sentencing hearing, the court granted appellant's oral motion to reconsider its true findings on the strike convictions. Appellant proffered a copy of the preliminary hearing transcript in the assault case, which the court accepted into the record due to appellant's insistence. The preliminary hearing transcript in the assault case reflects that two witnesses testified: the victim and a police officer. The victim testified that he never saw appellant holding a bottle and he did not know who threw it at him. The officer testified that Victor Saravia told him that he saw appellant throw a beer bottle.
The reporter's transcript of the preliminary hearing in the assault case reflects that appellant's counsel objected to the police officer's testimony on the grounds of hearsay and confrontation clause.
Appellant argued the police officer's testimony was inadmissible because it contained hearsay and violated his federal constitutional right to confrontation. Yet, appellant argued the victim's testimony was admissible to prove that "it was never established that I possessed the bottle, that I struck him with the bottle." Appellant also reiterated his earlier objections to admission of the probation reports. When asked if he had anything further, appellant cited Crawford v. Washington (2004) 541 U.S. 36 (Crawford) without any supporting argument. The court noted appellant's objections for the record and reaffirmed its prior rulings.
DISCUSSION
I. The Court Made Evidentiary Errors During Trial on the Strike Allegations.
A. The least adjudicated elements of section 245, subdivision (a)(1) and section 243, subdivision (d) are not serious or violent felonies.
Section 245, subdivision (a)(1) is a dual-pronged statute that punishes assaults "with a deadly weapon or instrument other than a firearm," and assaults that are committed "by any means of force likely to produce great bodily injury." (§ 245, subd. (a)(1).) The least adjudicated elements of the crime defined in section 245, subdivision (a)(1) are insufficient to establish a serious or violent felony. (People v. Rodriguez (1998) 17 Cal.4th 253, 261; Banyard v. Duncan (C.D.Cal. 2004) 342 F.Supp.2d 865, 877.) "In and of itself, the wobbler offense of assault by any means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), when a felony sentence is imposed, does not constitute a 'serious felony' (§ 1192.7, subd. (c)(8)) for purposes of the Three Strikes law, which requires that a serious felony or a violent felony (§ 667.5, subd. (c)(8)) be the basis for a prior felony conviction to be counted as a strike and on that basis to be used to increase the sentence for a current felony conviction." (People v. Feyrer (2010) 48 Cal.4th 426, 442, fn. 8 (Feyrer).) Yet, all assaults with a deadly weapon are serious felonies. (§ 1192.7, subd. (c)(31).) And any felony in which the defendant personally inflicts great bodily injury on any person other than an accomplice is a violent felony. (§ 1192.7, subd. (c)(8).) Therefore, if the People prove either that a deadly weapon was used during the assault or that the defendant personally inflicted great bodily injury on a person other than an accomplice, then the assault is a serious felony and qualifies as a strike offense. But without proof of weapon use or personal infliction of great bodily injury, the assault does not qualify as a serious felony. (People v. Feyrer, supra, 48 Cal.4th 442, fn. 8; People v. Delgado (2008) 43 Cal.4th 1059, 1065.)
Similarly, battery with serious bodily injury in violation of section 243 "is not a strike offense—it is neither a violent felony under section 667.5 nor a serious felony under section 1192.7 ...." (In re Jensen (2001) 92 Cal.App.4th 262, 268.) The least adjudicated elements of the crime of battery as defined in section 243 are insufficient to establish a serious or violent felony. The crime of battery with injury qualifies as a strike offense only if the People proved the defendant personally inflicted great bodily injury on a person other than the accomplice. (§ 1192.7, subd. (c)(8); People v. Bueno (2006) 143 Cal.App.4th 1503, 1508 (Bueno).)
"[I]f the prior conviction was for an offense that can be committed in multiple ways, and the record of the conviction does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense. [Citations.] In such a case, if the statute under which the prior conviction occurred could be violated in a way that does not qualify for the alleged enhancement, the evidence is thus insufficient, and the People have failed in their burden." (People v. Delgado, supra, 43 Cal.4th at p. 1066.) Since the base statutory elements of appellant's prior assault and battery convictions are insufficient to prove that the crimes were serious or violent felonies, the People were required to prove the additional elements discussed above to establish that the crimes qualified as strike offenses.
B. The court may examine the entire record of conviction.
The People must prove every element of a sentencing enhancement beyond a reasonable doubt. (People v. Tenner (1993) 6 Cal.4th 559, 566.) In determining if a prior conviction constituted a strike offense, the trier of fact may examine the entire record of the conviction, but no further, and it "may draw reasonable inferences from the record presented. Absent rebuttal evidence, the trier of fact may presume that an official government document, prepared contemporaneously as part of the judgment record and describing the prior conviction, is truthful and accurate. Unless rebutted, such a document, standing alone, is sufficient evidence of the facts it recites about the nature and circumstances of the prior conviction." (People v. Miles (2008) 43 Cal.4th 1074, 1083; People v. Guerrero (1988) 44 Cal.3d 343, 355 (Guerrero).)
"While the court may look at the entire record of the conviction, it may not relitigate the circumstances of the prior crime." (People v. Williams (1990) 222 Cal.App.3d 911, 915 (Williams).)While "Guerrero allows the prosecution to rely on the record of conviction to meet this burden, the court expressly declined 'to resolve such questions as what items in the record of conviction are admissible and for what purpose or whether on the peculiar facts of an individual case the application of the rule set forth herein might violate the constitutional rights of a criminal defendant.' [Citation.]" (Ibid., quoting Guerrero, supra, 44 Cal.3d at p. 356, fn. 1.) Post-Guerrero cases have determined that the record of conviction includes the charging documents, court records reflecting a defendant's admissions and no contest plea, or guilty plea, transcripts of the preliminary hearing and the sentencing hearing. (People v. Gonzales (2005) 131 Cal.App.4th 767, 773; People v. Thoma (2007) 150 Cal.App.4th 1096, 1101 (Thoma).)
"The normal rules of hearsay generally apply to evidence admitted as part of the record of conviction to show the conduct underlying the conviction." (People v. Woodell (1998) 17 Cal.4th 448, 458.) "[A] statement in the record of conviction that is offered to prove the truth of the matter stated must fall within an exception to the hearsay rule." (Thoma, supra, 150 Cal.App.4th at p. 1101; People v. Reed (1996) 13 Cal.4th 217, 230-231 (Reed).) Thus, for example, although a preliminary hearing transcript is part of the record of conviction, testimony given at the preliminary hearing is admissible to prove conduct underlying a prior conviction only if the witnesses' statements fall within an exception to the hearsay rule. (Reed, supra, 13 Cal.4th at pp. 224-225.)
C. Statements in the probation reports describing the circumstances of the crimes were inadmissible multiple hearsay.
In this case, the court admitted a postconviction probation report prepared in connection with the assault conviction and a preconviction probation report prepared in connection with the battery conviction. Appellant argues that the probation reports were themselves inadmissible hearsay and that the portions of the reports describing the circumstances of the offenses are multiple hearsay that does not fall within an exception to the hearsay rule. Respondent concedes that the trial court erred by admitting the probation report in the battery case. But respondent disputes appellant's contention that the trial court erred by admitting the probation report in the assault case by asserting that it "fails to see how Trujillo advances appellant's position." However, respondent does not proffer any theory of admissibility for the contents of the probation report in the assault case. As will be explained, we agree with appellant that the portions of the probation reports in the assault and battery cases describing the circumstances of these crimes contain multiple layers of hearsay, and no exception to the hearsay rule applies to each level. Since the relevant material contained in the probation reports was inadmissible hearsay, the trial court abused its discretion by admitting the contents of the probation report to prove that the prior convictions qualified as strike offenses.
We express no opinion on the question of whether preconviction and/or postconviction probation reports are properly considered part of the record of conviction. Our Supreme Court has declined to decide if probation reports are part of the record of conviction. (See, e.g., Reed, supra, 13 Cal.4th at p. 230; Trujillo, supra, 40 Cal.4th at pp. 177-178.) But it disapproved of a case holding that probation reports are part of the record of conviction. (Trujillo, supra, 40 Cal.4th at p. 181, fn. 3.) Instead, reviewing courts have focused their attention on assessing if the relevant statements contained in the probation report were individually admissible. (See, e.g., Reed, supra, 13 Cal.4th at p. 230; Trujillo, supra, 40 Cal.4th at p. 179.)
We begin by discussing the relevant line of authority. In Williams, supra, 222 Cal.App.3d 911, the appellate court found that a statement attributed to the victim in a probation report was inadmissible. Since this was the only evidence tending to prove personal weapon use, a prior serious felony enhancement arising from an aggravated assault conviction was reversed. The court explained, "the assertion used to impose an additional five-year prison sentence not only did not come from the defendant's mouth, but constituted hearsay thrice removed—an assertion by the sheriff, reported by the probation officer that the victim told him (the sheriff) that Williams held a knife to the victim's back. Williams was given no chance to cross-examine the probation officer, the sheriff who purportedly recited what the victim had said, or the victim himself." (Id. at p. 917.) And the court concluded "that the probation report statement was far too unreliable to be used to prove the enhancement. A five-year consecutive prison sentence cannot, consistent with due process and a defendant's constitutional right to confront witnesses, be predicated on such untrustworthy evidence." (Id. at p. 918.) Although section 1192.7 was amended after Williams was decided and section 1192.7 now provides that all assaults with a deadly weapon are serious felonies regardless of personal use (§ 1192.7, subd. (c)(31)), the essential reasoning of Williams remains viable.
Next, in Trujillo, supra, 40 Cal.4th 165, the Supreme Court upheld the trial court's refusal to consider a statement attributed to the defendant contained in a probation officer's report. (Id. at p. 181.) The majority opinion held that statements made by a defendant after his guilty plea has been accepted that are contained in a postplea probation report, are not part of the record of the prior conviction because such statements do not reflect the facts of the offense for which the defendant was convicted. (Id. at p. 179.) Allowing a defendant's statements contained in a postplea probation report to be used against him to establish the nature of the conviction would create harm "akin to double jeopardy" and would force "the defendant to relitigate the circumstances of the crime." (Id. at p. 180.)
Most recently, in Thoma, supra, 150 Cal.App.4th 1096, the appellate court reversed the trial court's finding that a prior conviction for driving under the influence causing bodily injury qualified as a strike because there was insufficient proof that the defendant personally inflicted great bodily injury. It applied Trujillo to hold that the victim's description of her injuries contained in a probation report was not admissible as an adoptive admission because the victim's statements were made after acceptance of the defendant's guilty plea. (Id. at p. 1102.)
This line of authority teaches that even though a document may be part of the record of conviction, statements contained in the document cannot be considered by the trier of fact to prove a contested fact unless the statements are admissible under applicable evidentiary rules. In this case, it is the hearsay rule that is relevant to determine the admissibility of the contents of the probation reports. "'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) "As with all multiple hearsay, the question is whether each hearsay statement fell within an exception to the hearsay rule. [Citation.]" (Reed, supra, 13 Cal.4th at pp. 224-225.)
The postconviction probation report in the assault case contains the following statement: "A witness told police he observed defendant walk up behind the victim and throw what appeared to be a glass beer bottle, at the back of the victim's head." While this statement is relevant to prove appellant used a weapon during commission of the assault, it contains multiple levels of hearsay. The first level of hearsay is the unidentified witness who made an unsworn statement to the police officer. The second level is the police officer who made the unsworn statement to the probation officer, and the third level is the probation officer who recounted the statement in the probation report. No exception to the hearsay rule applies to each level of hearsay. Therefore, the statements are not admissible.
The postconviction probation report in the assault case also contains appellant's statements to the probation officer denying that he threw a bottle at the victim. These statements contain multiple levels of hearsay. The first level is appellant's statements to the probation officer. The probation officer recounted appellant's statements to him in the probation report. This is the second level of hearsay. While appellant's statements to the probation officer (first level) arguably fall within the party admission exception to the hearsay rule (Evid. Code, § 1220), no exception to the hearsay rule applies to the probation officer's recounting of appellant's statements to him in the probation report (second level). Also, appellant's denial of any involvement in the incident at the bus stop does not prove either that he personally threw a bottle, that the victim was not an accomplice, or that the victim suffered great bodily injury. Therefore, appellant's statements are not admissible. (Trujillo, supra, 40 Cal.4th at pp. 179-180.)
The preconviction probation report in the battery case contains statements made by the victim to the probation officer describing the injuries appellant inflicted when he struck her. The victim's statements to the probation officer are relevant to prove that appellant personally inflicted great bodily injury on a person who was not an accomplice. However, the statements also contain multiple levels of hearsay. The first level of hearsay is the victim who made the unsworn statement to the probation officer, and the second level is the probation officer who recounted the statement in the probation report. There is not an exception to the hearsay rule applying to each level of hearsay. Therefore, these statements are inadmissible.
Both of the probation reports contain a section summarizing the factual circumstances of the crimes. The source of the facts contained in the summaries is not identified. In Reed, supra, 13 Cal.4th 217, the Supreme Court determined that a probation officer's summary of the circumstances surrounding the crime contained in a probation report was inadmissible, reasoning: "The report fragment does not identify the declarant or declarants from whose statements the probation officer drew his factual summary. There is no evidence the excerpt was based on defendant's own admissions to the officer, so as to fall within the hearsay exception for party admissions. [Citations.] Nor does any other exception to the hearsay rule appear applicable." (Id. at p. 230.) Here, it was not argued below or on appeal that the factual summaries were admissible as adoptive admissions. Therefore, the factual summaries contained in the probation reports cannot be considered to prove the circumstances of the assault and the battery. (Ibid.)
For all of these reasons, we hold that the trial court erred under state law by admitting the contents of the probation reports to prove the conduct involved in the assault and the battery convictions.
D. The special allegations that were pled but not admitted in the battery case were not admissible to prove the battery was a strike offense.
Appellant argues that to the extent the court relied on the complaint in the battery case to prove that the crime was a serious felony or that he personally inflicted great bodily injury, it erred under state law. Once again, we agree with appellant.
The complaint in the battery case alleged in count 1 that appellant committed the crime of mayhem by causing the victim to suffer a slit lip. It alleged in count 2 that appellant committed battery with serious bodily injury, a serious violent felony. It further alleged appellant personally inflicted great bodily injury upon a victim who was not an accomplice. The People did not proffer a transcript of the change of plea proceedings. They only offered an abstract of judgment within the section 969b packet. The abstract provides that appellant was convicted of "BATTERY W/SERIOUS BODILY INJ" obtained by means of a plea. The record does not contain any proof that appellant admitted the serious felony or great bodily injury allegations contained in the complaint, and there is no evidence that he was convicted of mayhem.
Section 969f, subdivision (a) requires a defendant to separately admit a serious felony allegation. This section provides, in pertinent part: "If the defendant pleads guilty of the offense charged, the question whether or not the defendant committed a serious felony as alleged shall be separately admitted or denied by the defendant."
In Bueno, supra, 143 Cal.App.4th 1503, the defendant pled guilty to battery with serious bodily injury. The People subsequently attempted to use this conviction as a strike pursuant to section 1192.7, subdivision (c)(8) (personal infliction of great bodily injury). The People argued that in pleading no contest to the battery charge, the defendant admitted the offense was a serious felony because the information contained such an allegation. The Bueno court rejected this argument, holding if the record does not contain evidence that the defendant separately admitted the serious felony allegation, "we must treat the allegation as dismissed." (Bueno, supra, at p. 1510.)
Following and applying Bueno, supra, 143 Cal.App.4th 1503, we conclude that the special allegations contained in the complaint in the battery case must be treated as dismissed. There is no evidence of anything other than a "plea" to the base battery charge. Since the reporter's transcript of the change of plea proceeding was not offered into evidence, there is no proof that appellant separately admitted any of the special allegations and no indication what factual basis was offered to support the plea. Likewise, the factual allegations pled in connection with count 1 of the complaint cannot be considered as proof of the conduct involved in the battery because there is no evidence appellant admitted any of these allegations or that he was convicted of mayhem. To the extent the trial court relied on the special allegations or the allegations contained in count 1 of the complaint to find that the battery was a prior strike, it erred under state law. (Id. at pp. 1508-1510; see also, e.g., People v. Leslie (1996) 47 Cal.App.4th 198, 203-204.)
II. The Evidentiary Errors are Prejudicial.
We turn to an assessment of prejudice. Prejudice arising from state law evidentiary error is assessed under the Watson standard of reasonable probability of a more favorable verdict. (People v. Watson (1956) 46 Cal.2d 818, 836.) Thus, we must determine if it is reasonably probable that the strike allegations would have been found to be true if the evidentiary error had not occurred. As we will explain, due to the limited appellate record and the absence of crucial factual findings we must find that the evidentiary errors are prejudicial with respect to the true finding on both prior strike allegations.
A. The evidentiary errors were prejudicial with respect to the finding that the assault was a prior strike.
As previously explained, the least adjudicated elements of aggravated assault in violation of section 245, subdivision (a)(1), do not constitute a strike offense. A conviction for violating section 245, subdivision (a)(1) is not a per se strike offense. To prove that an assault conviction qualifies as a strike, the People must prove either that a deadly weapon was used during the crime or that appellant personally inflicted great bodily injury on the victim. Without affirmative proof of either deadly weapon use or personal infliction of great bodily injury, an assault conviction does not qualify as a strike. (People v. Rodriguez, supra, 17 Cal.4th at pp. 261-262 [abstract reflecting a section 245, subdivision (a)(1) conviction does not prove defendant pled guilty to a serious felony]; Banyard v. Duncan, supra, 342 F.Supp.2d at p. 877 [no contest plea to violating section 245, subdivision (a)(1) insufficient to prove defendant pled guilty to a serious felony].)
The documentary record of the assault conviction that is currently before this court only establishes that appellant pled no contest to the base statutory language of a violation of section 245, subdivision (a)(1). The parties stipulated to a factual basis for the plea without referring to any specific document or setting forth any facts. Neither the bottle nor the victim's injury was mentioned during the change of plea proceedings. Appellant did not admit that a deadly weapon was used during commission of the assault. He did not admit personally inflicting great bodily injury. Appellant did not make a section 969f admission by separately admitting that the offense was a serious felony. The abstract of judgment and change of plea forms merely restate and abbreviate the statutory language.
Further, assuming that the victim's testimony permits a reasonable inference that appellant intentionally threw a bottle, this inference does not prove beyond a reasonable doubt either that the assault was committed with a deadly weapon or that the victim suffered great bodily injury. Neither the trial court that accepted appellant's no contest plea in the assault case nor the trial court in the current case made a factual finding that the bottle was used as a deadly weapon or a factual finding that the cut on the victim's head constituted great bodily injury. Deciding if an object such as a bottle was used as a deadly weapon ordinarily presents a question of fact. (People v. Curcio (1967) 255 Cal.App.2d 183, 190.) We have carefully examined the appellate record and have determined that it would not be appropriate for this court to conclude as a matter of law in the first instance that the bottle was used as a deadly weapon. There is no evidence of any prior contact between the victim and appellant. There is no evidence that appellant has a history of randomly assaulting strangers. Also, the record does not contain any properly admitted evidence about the way the bottle was thrown at the victim. It is not clear if the bottle was forcibly hurled directly at the victim's head or if it was tossed in the victim's general direction. These unanswered questions are significant enough to preclude a finding by this court as a matter of law that the bottle necessarily was used as a deadly weapon.
We have also determined it would not be appropriate for this court to conclude as a matter of law in the first instance that the victim suffered great bodily injury. The appellate record contains scant properly admitted evidence concerning the cut on the victim's head. While some cranial lacerations may qualify as great bodily injuries, the appellate record before us does not contain sufficient detail about the victim's injury and treatment to allow us to find as a matter of law that the victim sustained great bodily injury.
For all of these reasons, we find it is reasonably probable that the evidentiary errors affected the verdict on the special allegation that the assault conviction was a strike prior. (People v. Rodriguez, supra, 17 Cal.App.4th at pp. 261-262; Banyard v. Duncan, supra, 342 F.Supp.2d at p. 877; Williams, supra, 222 Cal.App.3d at p. 918.) The proper remedy is to reverse the true finding on this strike allegation. (Williams, supra, 222 Cal.App.3d at p. 918.) Retrial of the special allegation is permitted. (People v. Barragan, supra, 32 Cal.4th at pp. 253-254; Monge v. California, supra, 524 U.S. at p. 734.)
B. The evidentiary errors were prejudicial with respect to the finding that the battery was a prior strike.
As previously explained, the least adjudicated elements of the crime of battery with serious injury in violation of section 243, subdivision (d), do not constitute a strike offense. In order for this crime to be a serious felony, the People must prove that the defendant personally inflicted great bodily injury on a victim who was not an accomplice. (§ 1192.7, subd. (c)(8).)
The People proffered minimal evidence to prove the battery conviction was a strike. The record contains a felony complaint, an abstract of judgment reflecting that appellant was convicted of battery with serious injury by way of a plea, and references to a battery conviction in the CLETS printout and an FBI form. The People did not proffer a copy of the reporter's transcript of the preliminary hearing or a copy of the reporter's transcript of the change of plea proceedings. There is no evidence concerning the factual basis for the plea or any proof that appellant separately admitted the battery was a serious felony in compliance with section 969f, subdivision (a). Also, there is no proof that appellant was the only person charged in the battery case; an accomplice could have been separately charged. Since the change of plea proceedings are not contained in the appellate record, there is no evidence showing that appellant admitted personally inflicting great bodily injury on the victim or that the court made such a factual finding when it accepted the plea. Finally, there is no properly admitted evidence in the appellate record concerning the type and extent of the victim's injuries. The trial court in the current case did not make a factual finding that the victim in the battery case sustained great bodily injury. In the absence of properly admitted evidence concerning the victim's injuries, we cannot find as a matter of law in the first instance that the victim sustained great bodily injury.
Citing People v. Moore (1992) 10 Cal.App.4th 1868 (Moore), the People urge us to rely on the allegations contained in count 1 of the complaint as proof of the additional facts necessary to establish that the battery qualified as a serious felony. We are not convinced. We have previously determined that the allegations contained in count 1 of the complaint are not admissible to prove the conduct underlying the battery and Moore does not provide a basis to revisit this conclusion.
In Moore, the court held that serious bodily injury was equivalent to great bodily injury. (Moore, supra, 10 Cal.App.4th at p. 1871.) The court noted in passing that the trial court properly considered the record of conviction in determining that the defendant's prior conviction for felony battery was a serious felony. Yet, the court did not purport to determine whether the evidence relied on by the trial court was sufficient to sustain the court's true findings against a sufficiency of the evidence challenge. Reasonably read, Moore does not stand for the proposition that bare allegations contained in a different count of an accusatory pleading are sufficient by themselves to establish a disputed fact that was never admitted by the defendant. The trial court in Moore took judicial notice of the entire superior court file relating to the defendant's prior conviction. The trial court then made a specific finding that Moore was the sole perpetrator of the crime, thus necessarily determining that Moore personally inflicted the great bodily injury and that the victim was not an accomplice. (Ibid.) In contrast, the trial court in this case did not examine the entire superior court file and it did not make a finding that appellant was the sole perpetrator of the battery. Thus, Moore is both legally and factually inapposite.
For all of these reasons, we conclude it is reasonably probable that the evidentiary errors affected the verdict on the special allegation that the battery conviction qualified as a prior strike. The proper remedy is to reverse the true finding on this strike allegation. (Williams, supra, 222 Cal.App.3d at p. 918.) Retrial of the special allegation is permitted. (People v. Barragan, supra, 32 Cal.4th at pp. 253-254; Monge v. California, supra, 524 U.S. at p. 734.)
III. The Rest of Appellant's Evidentiary Arguments Fail.
A. Federal constitutional objections to admission of the probation reports were not preserved for direct appellate review.
Appellant also contends that admission of the probation reports infringed his federal constitutional confrontation and due process rights. As will be explained, we agree with respondent that these points were not preserved for appellate review.
"'No procedural principle is more familiar to [the United States Supreme Court] than that a constitutional right,' or a right of any other sort, 'may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.' [Citation.]" (United States v. Olano (1993) 507 U.S. 725, 731.) This principle is codified in Evidence Code section 353, subdivision (a). "Specificity is required both to enable the court to make an informed ruling on the motion or objection and to enable the party proffering the evidence to cure the defect in the evidence." (People v. Mattson (1990) 50 Cal.3d 826, 854; People v. Dorsey (1974) 43 Cal.App.3d 953, 959.)
The contemporaneous objection rule applies to claims of state and federal constitutional error. (People v. Daniels (2009) 176 Cal.App.4th 304, 320, fn. 10.) A claim that the introduction of evidence violated the defendant's rights under the confrontation clause must be presented to the trial court for decision or it is forfeited on direct appeal. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19; People v. Burgener (2003) 29 Cal.4th 833, 869; People v. Catlin (2001) 26 Cal.4th 81, 138, fn. 14.) In Melendez-Diaz v. Massachusetts (2009) _ U.S. _ (Melendez-Diaz), the United States Supreme Court wrote, "The defendant always has the burden of raising his Confrontation Clause objection (Melendez-Diaz, supra, 129 S.Ct. at p. 2541.) Furthermore, "The right to confrontation may, of course, be waived, including by failure to object to the offending evidence; and States may adopt procedural rules governing the exercise of such objections." (Melendez-Diaz, supra, 129 S.Ct. at p. 2534, fn. 3.) Similarly, to the extent a defendant may be understood to argue that due process required exclusion of evidence for a reason different than his trial objection, the claim is forfeited unless a due process objection was lodged below. (People v. Partida (2005) 37 Cal.4th 428, 436.)
Appellant objected to admission of the probation reports on the ground that they contained inadmissible multiple hearsay. He did not interpose a confrontation clause or due process objection to consideration of the probation reports. The confrontation clause argument appellant asserted during the reconsideration hearing related to the officer's testimony at the preliminary hearing in the assault case. Accordingly, we conclude appellant forfeited appellate review of his constitutional objections to admission of the probation reports. (Melendez-Diaz, supra, 129 S.Ct. at pp. 2534, fn. 3 & 2541.)
B. The trial court did not rely on the officer's testimony at the preliminary hearing on the assault case.
Appellant also contends the trial court erred under state law and infringed his federal constitutional due process and confrontation rights by considering the police officer's testimony contained in the transcript of the preliminary hearing in the assault case. The record does not support this assertion. Reasonably read, it is apparent that the trial court accepted appellant's argument that the police officer's testimony was not admissible to prove the facts of the aggravated assault. The court responded "All right," after appellant argued that under current case law a police officer's testimony elicited at a preliminary hearing is inadmissible at a later prosecution to prove conduct. When the court reaffirmed its true finding on the strike allegations, it did not indicate that it had relied on the police officer's testimony. Further, the trial court only admitted the entire transcript of the preliminary hearing into the record because appellant insisted on it. Appellant caused unnecessary confusion by asking for the entire transcript to be admitted into the record after he successfully argued that the officer's testimony was irrelevant. Any possible error was invited by appellant. (People v. Harrison (2005) 35 Cal.4th 208, 237.)
IV. The Trial Court Did Not Infringe Appellant's Federal Constitutional Right to Counsel by Permitting Self-Representation.
During the felony arraignment on September 10, 2008, appellant appeared without counsel and requested to invoke his self-representation right pursuant to Faretta, supra, 422 U.S. 806. A videotape was played informing appellant of his rights, after which the court granted the self-representation request. During proceedings on October 3, 2008, appellant informed the court that he wanted to represent himself. The court found appellant "has a substantial lack of knowledge of law and procedures," and appointed counsel. On November 19, 2008, appellant made a Faretta motion, which was granted after hearing. On December 1, 2008, appellant requested appointment of counsel. On July 15, 2009, appellant made another Faretta motion, which was granted after hearing. Appellant represented himself during the bifurcated jury trial which commenced on January 19, 2010, and at sentencing. Appellant requested appointment of counsel on appeal.
Appellant does not affirmatively challenge the validity of invocation of his self-representation right, and he acknowledges "[t]here is no issue in this case about [his] mental competence." Indeed, the record reflects that appellant's invocation of his self-representation right was unequivocal, timely and knowing. Appellant vigorously represented himself and demonstrated a working knowledge of the applicable law and trial procedure. Instead, appellant argues Faretta "was a poorly reasoned decision which should be overturned by the United States Supreme Court." We reject this argument because the Supreme Court expressly refused to overrule Faretta in Indiana v. Edwards (2008) 554 U.S. 164, 178. Faretta is binding legal precedent on this court and we must adhere to and follow it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We therefore hold that the trial court did not infringe any of appellant's federal constitutional rights by permitting self-representation.
DISPOSITION
The findings of the superior court that appellant's conviction for violating subdivision (a)(1) of Penal Code section 245 in Los Angeles County case No. VA031725 and appellant's conviction for violating subdivision (d) of Penal Code section 243 in Los Angeles County case No. BA211153, qualify as prior strikes under the three strikes law are reversed. The sentence is vacated. The judgment is otherwise affirmed. The cause is remanded to the trial court for resentencing or, at the prosecutor's election, retrial of the prior strike allegations.
LEVY, J.
WE CONCUR:
WISEMAN, Acting P. J.
KANE, J.