Opinion
B223961
09-28-2011
THE PEOPLE, Plaintiff and Respondent, v. AUSTIN ASHFORD SMITH, Defendant and Appellant.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and E. Carlos Dominguez, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. KA088088)
APPEAL from a judgment of the Superior Court of Los Angeles County. Thomas C. Falls, Judge. Affirmed.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and E. Carlos Dominguez, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Austin Ashford Smith contends insufficient evidence supported the trial court's finding that a prior juvenile adjudication he suffered was a "strike" within the meaning of the Three Strikes law. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The People charged defendant with one count of receiving stolen property in violation of Penal Code section 496, subdivision (a), and one count of possession of marijuana in violation of Health and Safety Code section 11357, subdivision (b). The People further alleged defendant had suffered two prior convictions, within the meaning of the Three Strikes law. (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i).) One of the alleged strikes was a juvenile adjudication. Defendant entered a conditional no contest plea. Under the plea agreement, if the trial court found the juvenile adjudication was not a strike, defendant would receive a 32-month prison sentence. If the court found the juvenile adjudication was a strike, the People would dismiss one of the two strikes, and defendant would receive a five-year prison sentence.
All further statutory references are to the Penal Code unless otherwise noted.
The trial court determined the juvenile adjudication was a strike.
DISCUSSION
I. Substantial Evidence Supported the Trial Court's Finding that the Juvenile Adjudication was a Strike
Defendant contends insufficient evidence supported the trial court's finding that his prior juvenile adjudication was a strike. We disagree.
A. Applicable Legal Principles
When reviewing a trial court's determination that a prior conviction or juvenile adjudication was a strike, we "examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt. [Citations.]" (People v. Delgado (2008) 43 Cal.4th 1059, 1067 (Delgado).)
Under the Three Strikes law, a prior juvenile adjudication may qualify as a strike if it was for an offense listed in Welfare and Institutions Code section 707, subdivision (b), or if the adjudicated offense is identified as a violent felony in section 667.5, subdivision (c), or as a serious felony in section 1192.7, subdivision (c). (§ 667, subd. (d)(3).)
Section 667, subdivision (d)(3) states in full: "A prior juvenile adjudication shall constitute a prior felony conviction for purposes of sentence enhancement if: [¶] (A) The juvenile was 16 years of age or older at the time he or she committed the prior offense. [¶] (B) The prior offense is listed in subdivision (b) of Section 707 of the Welfare and Institutions Code or described in paragraph (1) or (2) as a felony. [¶] (C) The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law. [¶] (D) The juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code."
Defendant's juvenile adjudication was for a violation of section 245, subdivision (a)(1), which makes it a felony to commit "an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury." Not all convictions under this statute constitute strikes. " '[A]ssault with a deadly weapon' is a serious felony. (§ 1192.7, subd.(c)(31).) On the other hand, while serious felonies include all those 'in which the defendant personally inflicts great bodily injury on any person' (id., subd. (c)(8), italics added), assault merely by means likely to produce GBI, without the additional element of personal infliction, is not included in the list of serious felonies. Hence . . . a conviction under the deadly weapon prong of section 245(a)(1) is a serious felony, but a conviction under the GBI prong is not." (Delgado, supra, 43 Cal.4th at p. 1065.) However, a conviction for assault with a deadly weapon is a strike even if the defendant did not personally use the weapon. (§ 1192.7, subd. (c)(31); People v. Myers (2007) 148 Cal.App.4th 546, 554; People v. Luna (2003) 113 Cal.App.4th 395, 398, disapproved of on another ground by Delgado, supra, 43 Cal.4th at p. 1070, fn. 4.)
When "the mere fact that a prior conviction occurred under a specified statute does not prove the serious felony allegation, otherwise admissible evidence from the entire record of the conviction may be examined to resolve the issue. [Citations.]" (Delgado, supra, 43 Cal.4th at p. 1065.)
B. Discussion
The trial court reviewed documents from the juvenile adjudication and the transcript of the juvenile proceedings to make the strike determination. The trial court's task was to "determine whether [the record of the prior proceeding was] sufficient to demonstrate that the conviction is of the type that subjects the defendant to increased punishment under California law." (People v. McGee (2006) 38 Cal.4th 682, 706 (McGee), italics omitted.) Specifically, the court needed to determine whether defendant's juvenile adjudication was for a serious felony under section 245, subdivision (a)(1): assault with a deadly weapon.
We have reviewed the record of the juvenile conviction, including the transcript of the underlying adjudication hearing and the Penal Code section 969, subdivision (b) packet, which were transmitted to this court as a part of the record on appeal. (Cal. Rules of Court, Rule 8.320, subd. (b)(13)(C).)
A section 245, subdivision (a)(1) conviction could also constitute a strike if based on the great bodily injury prong and there was a true finding that the defendant personally inflicted great bodily injury. (§ 1192.7, subd. (c)(8); Delgado, supra, 43 Cal.4th at p. 1065). However, as discussed infra, the record of the juvenile adjudication indicated the juvenile court expressly found not true the allegation that defendant personally inflicted great bodily injury. Personal infliction of great bodily injury could not have been the basis for the strike finding in this case.
The record of the juvenile adjudication revealed the following. In May 2005, the People filed a petition pursuant to Welfare and Institutions Code section 602, alleging defendant had committed assault with a deadly weapon, and by means of force likely to produce great bodily injury. The petition also alleged that in the commission of the assault, defendant personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a).
The juvenile court conducted a hearing to adjudicate the "245" charge against defendant. Defendant's stepfather testified about an attack he suffered in April 2005.Approximately six people "jumped" the stepfather in his garage and beat him with crutches and a crescent wrench. As a result of the attack he sustained two cuts on the back of his head that required stitches and 13 staples to close. The stepfather testified he did not know what object struck him in the head because he could not see and was trying to protect his face. He could see people hitting him with the wrench but he did not know who they were, and he did not know who hit him with the crutches. He later testified he did not see defendant hit him with the crutches, he did not see defendant hit him with a wrench, and he did not see anyone hit him with either object because he was covering his eyes. Yet he knew the wrench and crutches were used in the attack because they lay on the floor of the garage after the incident, and the wrench was bloody. He had also felt himself being hit with the objects. The stepfather testified that after the incident, he told a police officer that defendant, his stepson, was present during the attack. He also told police he thought he was attacked because he had reported defendant to the police for burglary charges.
The stepfather admitted he did not want to testify in the juvenile proceedings against defendant. He indicated "someone" had threatened him the night before the hearing and warned him not to testify against defendant. He refused to answer numerous questions and stated he was trying to protect himself and his young son.
A police officer who spoke with the stepfather on the night of the incident also testified in the juvenile proceedings. When the officer first interviewed the stepfather he saw blood on the stepfather's head and face. The stepfather told the officer he was attacked by several men who hit him with crutches and a wrench. The stepfather identified two of his attackers: defendant, and defendant's mother. He did not tell the officer who hit him with the crutches or wrench, or who kicked or punched him.
Defendant's counsel moved to dismiss the charge on the ground that "there's some discrepancy as to [stepfather] indicating who in fact used a deadly weapon, to wit a wrench or a crutch against him." The juvenile court denied the motion. In his closing argument, defendant's counsel again argued there was insufficient evidence: "He has no evidence to prove, in fact, [defendant] inflicted injury with use of a wrench or crutches. And ask that the case be dismissed as to that issue as to the use of the deadly weapon only." The court found not true the charged allegation that defendant personally inflicted great bodily injury. The court then sustained the section 245, subdivision (a)(1) count of the petition.
In the present case, the trial court concluded "the [juvenile] court specifically found true that the defendant committed an assault with a deadly weapon, in violation of Penal Code section 245(A)(1), a felony, and that the minor, the defendant, did willfully and unlawfully commit an assault upon [the stepfather] with a deadly weapon, to wit, wrench and crutches. So with that, he was found guilty of the assault. He was found guilty of using a weapon. The strike prior appears to be true."
In opposition to the People's argument that the juvenile adjudication was a strike, defense counsel argued: "I believe that the [juvenile] court found that there was no proof that this defendant personally used a weapon; however, that someone in the group did. So my only argument would be that because the defendant himself did not personally - or there was no evidence that he personally used the weapon, that he should not be held liable for the acts of his accomplices."
Substantial evidence supported the trial court's finding. In the juvenile proceedings, the stepfather testified that six people jumped him and beat him with crutches and a wrench. He told police defendant was one of the six present during the attack, although he did not specifically say who hit him with the crutches or wrench. The juvenile court denied defendant's motion to dismiss the case as to the use of a deadly weapon issue.
The trial court was allowed to draw reasonable inferences from the record. (People v. Miles (2008) 43 Cal.4th 1074, 1083 (Miles).) In light of the evidence offered, there was no basis for the juvenile court to conclude the attack on the stepfather only constituted use of force likely to produce great bodily injury, and not assault with a deadly weapon. Despite the stepfather's reluctance to testify and his refusal to inculpate defendant, he repeatedly indicated that his attackers hit him with crutches and a wrench, both immediately after the incident and at the hearing on the juvenile delinquency petition.
Moreover, the juvenile court clearly found defendant was involved in the attack, even though the stepfather either could not or would not testify about defendant's involvement, except to admit that defendant was present. Thus, to the extent defendant was culpable, the evidence did not support a determination that he facilitated, encouraged, or participated only in the assault with force likely to produce great bodily injury, but not the assault with the crutches and wrench. Further, the juvenile court rejected defense counsel's request that the court dismiss the case "as to the use of the deadly weapon only." Under these circumstances, the "most reasonable inference" was that the juvenile court sustained the juvenile petition based on defendant's involvement in the attack as a co-participant or aider and abettor in an assault with a deadly weapon, as well as by means of force likely to produce great bodily injury. (Miles, supra, 43 Cal.4th at p. 1090; McGee, supra, 38 Cal.4th at p. 706 [court must examine record to determine "whether the conviction realistically may have been based on conduct that would not constitute a serious felony under California law."].)
Thus, there was sufficient evidence for the trial court in the instant case to conclude defendant's juvenile adjudication was a strike crime. The record contradicts defendant's contention that there was no evidence a deadly weapon was used in the offense. In several instances, the stepfather said he was hit with the crutches and a wrench. The juvenile petition asserted use of a deadly weapon as part of the charged offense and that count was sustained. A juvenile adjudication of assault with a deadly weapon, based on the defendant's personal or vicarious use of the weapon, is a strike crime.
For example, the stepfather testified: "[Some people] jumped me and beat me with a crutch and also a crescent wrench." In response to the question, "Could you see who actually was hitting you with, let's say, the wrench?" the stepfather answered: "I could see the people but I don't know who they were." After testifying he did not see anyone hit him with the wrench or crutches, he testified he knew he was hit with a wrench "[b]ecause it was laying there in the floor when I got home, with blood on it," and he knew he was hit with a crutch because, "the crutches are laying in the floor." He additionally testified that he felt himself being hit with the objects. The police officer testified the stepfather said he was "attacked and that he didn't see exactly who it was but he had known it was adult males and he had described it originally that it was several of them and that he was struck with crutches and with a wrench."
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DISPOSITION
The trial court judgment is affirmed.
BIGELOW, P. J.
We concur:
RUBIN, J.
GRIMES, J.