Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super.Ct.No. RIF113301. Elisabeth Sichel, Judge.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Marissa Bejarano, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P.J.
A jury found defendant and appellant Derrill Charles Udell guilty of attempted murder of a peace officer (Pen. Code, §§ 664, subd. (e)/187, subd. (a), count 1), assault by means likely to produce great bodily injury on a peace officer (§ 245, subd. (c), count 2), attempted possession of a firearm by a felon (§§ 664/12021, subd. (a)(1), count 3), and attempted robbery. (§§ 664/211, count 4.) A bifurcated bench trial was held regarding prior conviction allegations. The trial court found true the allegations that defendant had served one prior prison term for a violent felony, arising out of a 1984 Nevada robbery conviction (§ 667.5, subd. (a)), and two prior prison terms, arising out of petty theft convictions in 2000 and 2002 in Riverside County. (§ 667.5, subd. (b).) The court also found true that defendant had suffered two prior serious felonies, arising from a 1984 Nevada robbery conviction and a 1978 Arizona vehicular manslaughter conviction (§ 667, subd. (a)), and three prior strike convictions, based on his 1984 Nevada convictions for two counts of robbery and his 1978 Arizona conviction of vehicular manslaughter. (§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A).) The court sentenced defendant to a total state prison term of 60 years to life, consisting of 25 years to life on count 1, 25 years to life on count 4, plus two five-year terms for the prior serious felonies. The sentences on the remaining counts and enhancements were stayed pursuant to section 654.
All further statutory references will be to the Penal Code unless otherwise indicated.
On appeal, defendant argues that the following findings of the court must be stricken for lack of sufficient evidence: 1) he suffered two strike priors and one prior serious felony conviction, based on the 1984 Nevada conviction of two counts of robbery; 2) he served a prior prison term for a violent felony conviction, based on the 1984 Nevada robbery conviction; and 3) he suffered one strike prior and one prior serious felony conviction, based on the 1978 Arizona vehicular manslaughter conviction. The People concede, and we agree, that the finding regarding the 1978 Arizona conviction was not supported by sufficient evidence. Otherwise, we affirm.
Because the issues on appeal only involve sentencing matters, we will only give a brief rendition of the facts.
Defendant entered a store, pointed what appeared to be a gun at the cashier and demanded money. The cashier told defendant it was her first day on the job and she did not know how to open the cash register. Two customers walked in the store and noticed something was wrong, and defendant took off running. Officer Deborah Foy was dispatched to the store and noticed defendant walking on the street. She stopped him and told him to place his hands on the patrol car. He initially complied, but then he spun around and grabbed Officer Foy’s gun. She held onto defendant’s hand so that he could not pull the gun out of her holster. He grabbed her clothes and neck. A citizen grabbed defendant and pulled him away from Officer Foy to stop him from choking her.
ANALYSIS
I. There Was Sufficient Evidence to Support the Court’s Finding That Defendant’s Nevada Robberies Qualified as Serious Felonies and Strikes
The court found true the allegations that defendant had suffered one prior serious felony (§ 667, subd. (a)) and two prior strike convictions, arising from his 1984 Nevada convictions for two counts of robbery. Defendant argues that there was insufficient evidence to support these findings since the Nevada robberies did not include all of the elements of a robbery in California. Specifically, defendant contends that the evidence did not show that he had the specific intent to permanently deprive another person of property or that he accomplished the robberies by means of immediate force or fear. We disagree.
A. Background
During the bifurcated proceeding on the prior conviction allegations, the prosecutor submitted into evidence the charging documents, the court’s minutes, and the formal judgment of conviction, regarding the 1984 Nevada robbery convictions. The original information charged defendant with four counts of burglary and four counts of robbery. The court minutes indicated that the parties negotiated an agreement, and the prosecutor filed an amended information charging defendant with one count of burglary and two counts of robbery. The robbery counts alleged that defendant “willfully, unlawfully and feloniously” took personal property “by means of force or violence or fear of injury to, and without the consent and against the will of” two different victims, Stephen Fiasco and Rosanne Meiners. Defendant pled guilty to the counts as charged in the amended information.
B. Applicable Legal Standards
“California’s ‘Three Strikes’ law (§§ 667, subds. (b)–(i), 1170.12) provides longer sentences for persons convicted of a felony who have been previously convicted of a violent felony, as defined in section 667.5, subdivision (c), or a serious felony, as defined in section 1192.7, subdivision (c). A prior conviction that qualifies as a violent or serious felony is commonly known as a ‘strike.’ [Citation.] . . . When a person has been convicted of a serious felony, an additional five year prison term must be imposed for any prior conviction that qualifies as a serious felony. [Citation.]” (People v. Rodriguez (2004) 122 Cal.App.4th 121, 128 (Rodriguez).)
A conviction in another jurisdiction qualifies as a strike if it contains all of the elements required for a crime to be deemed a serious or violent felony in California. (§ 667, subd. (d)(2).) “A conviction qualifies for the five-year enhancement under section 667, subdivision (a)(1) if it includes all the elements of a serious felony. The prosecution has the burden of proving beyond a reasonable doubt each element of a prior conviction used to enhance a defendant’s sentence. [Citation.]” (Rodriguez, supra, 122 Cal.App.4th at p. 128.) In determining the truth of the existence of a prior felony conviction in another jurisdiction for purposes of the Three Strikes and other enhancement laws, the trial court may look to the entire record of the conviction, which includes the accusatory pleading and the defendant’s guilty plea. (People v. Guerrero (1988) 44 Cal.3d 343, 345, 354–356 (Guerrero).)
“‘When, as here, a defendant challenges on appeal the sufficiency of the evidence to sustain the trial court’s finding that the prosecution has proven all elements of the enhancement, we must determine whether substantial evidence supports that finding. The test on appeal is simply whether a reasonable trier of fact could have found that the prosecution sustained its burden of proving the enhancement beyond a reasonable doubt.’ [Citation.] In making this determination, we review the record in the light most favorable to the trial court’s findings. [Citation.]” (Rodriguez, supra, 122 Cal.App.4th at p. 129.)
C. There Was Sufficient Evidence to Support the Court’s True Findings
Defendant pled guilty to two counts of robbery in Nevada in 1984. In Nevada, robbery is defined as “the unlawful taking of personal property from the person of another, or in his presence, against his will, by means of force or violence or fear of injury, immediate or future, to his person or property, or the person or property of a member of his family, or of anyone in his company at the time of the robbery.” (Nev. Rev. Stat. Ann. § 200.380, hereafter “NRS 200.380.”) NRS 200.380 defines robbery as a general intent crime, so there is no requirement of the specific intent to deprive the victim permanently of his property. (Litteral v. State (1981) 97 Nev. 503, 508 (Litteral), overruled in part by Talancon v. State (1986) 102 Nev. 294.) In California, robbery is defined as the felonious “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.” (§ 211.) Thus, the elements of the two statutes differ in that: 1) “[U]nder Nevada law, robbery requires only general criminal intent [citation], whereas under California law, robbery requires a specific criminal intent to permanently deprive another person of property” (People v. McGee (2006) 38 Cal.4th 682, 688 (McGee)); and 2) “under Nevada law, a taking accomplished by fear of future injury to the person or property of anyone in the company of the victim at the time of the offense qualifies as robbery [citation], whereas under California law such a taking does not [citation].” (Ibid, fn. omitted.)
1. There Was Sufficient Evidence to Support the Finding That Defendant Had the Specific Intent to Permanently Deprive Another Person of Property
In Litteral, supra, the Nevada Supreme Court stated that, although at common law, robbery required the specific intent to steal, the Nevada Legislature now defined robbery as an “unlawful” taking; thus, there was no specific intent requirement. (Litteral, supra, 97 Nev. at p. 506.) The Supreme Court interpreted the phrase “unlawful taking” the same as “wrongful taking”—the phrase that was used in the Oklahoma robbery statute. (Id. at p. 507.) The Court cited Traxler v. State (1952) 96 Okla. Crim. 231, which held that “although the word ‘felonious’ incorporated all the common law elements of robbery, including specific intent, the words ‘wrongful taking’ did not.” (Litteral, supra, at p. 507, italics added.) The Litteral court stated that the predecessor of NRS 200.380, like that of the Oklahoma statute construed in Traxler, defined robbery as a “felonious” taking. (Litteral, supra, at p. 507, fn 6.)
Defendant here pled guilty to “willfully, unlawfully, and feloniously” taking personal property (money), by “means of force or violence or fear of injury to, and without the consent and against the will of” the two victims. Thus, defendant did not just plead guilty to robbery as a general intent crime, based on an “unlawful taking.” He pled guilty specifically to a felonious taking, which implies the specific intent required in California. The court properly relied on the accusatory pleading in determining the truth of the prior conviction allegations. (Guerrero, supra, 44 Cal.3d at pp. 345, 355.) Thus, there was sufficient evidence to support the court’s findings.
Defendant claims that the record of conviction produced by the People did not reveal conduct amounting to a California serious felony or strike, since the People failed to provide the trial court with the amended three-count information, to which he pled guilty. He states that the People instead provided the original eight-count information, which alleged a different crime (robbery with use of a deadly weapon) and asserts that he did not plead guilty to that crime. Defendant is mistaken. The exhibits in the appellate record show that the People provided both the original information and the amended information.
Defendant further argues that the wording in the information described the “generic crime of felony robbery in Nevada” and that the People provided no authority that, had he gone to trial, he would have been entitled to a specific intent instruction, by virtue of the use of the term “‘feloniously.’” He avers that Litteral shows that he would not have been entitled to such instruction. Litteral is distinguishable. In Litteral, the judge, when instructing the jury on the crime of robbery, followed the statutory definition of robbery as set forth in NRS 200.380. The court refused, over the defendant’s objection, to instruct the jury that the defendant had to take the property with the specific intent to deprive the victim permanently of his property. (Litteral, supra, 97 Nev. at p. 505.) The Nevada Supreme Court concluded that, since NRS 200.380 defined robbery as a general intent crime, the lower court “did not err in refusing to give the requested specific intent instruction.” (Id. at p. 508.)
In the instant case, the prosecution in Nevada did not charge defendant with robbery, according to the wording of NRS 200.380, which defines robbery as “the unlawful taking of personal property from the person of another . . . .” Instead, the prosecution charged defendant with “willfully, unlawfully, and feloniously” taking personal property from others. We cannot simply ignore the word “feloniously,” as used in the amended information, since the prosecution specifically added that word to the robbery charges, and since it has a significant meaning. (See ante). Moreover, we decline to speculate what jury instructions would have been requested and/or refused if defendant went to trial because defendant did not go to trial. He chose to plead guilty to the charges, as pled in the amended information.
2. There Was Sufficient Evidence to Support the Finding That Defendant Accomplished the Taking by Means of Immediate Force or Violence or Fear of Injury
Defendant argues that his Nevada robbery convictions did not qualify as serious felonies or strike convictions because he could have accomplished the takings by placing the victims in fear of future harm, which would not qualify as robbery in California. We disagree.
In determining the truth of prior conviction allegations, at times, “the trier of fact must draw inferences from . . . the prior conviction record.” (McGee, supra, 38 Cal.4th at p. 694.) Here, defendant pled guilty to two robberies in Nevada. He admitted that he “did then and there willfully, unlawfully and feloniously take [money from the persons of Fiasco and Meiners] by means of force or violence or fear of injury to” them and against their wills. The language clearly states that defendant “did” take money from the victims by means of force or fear. There is nothing in the language of the pleading which indicates, or even suggests, that the force, violence, or fear of injury, was to occur in the future. The only reasonable inference of the language of the charging document was that defendant used immediate force or fear to accomplish the takings.
In sum, viewing the record in the light most favorable to the court’s findings, as we must, we conclude that there was sufficient evidence to support the court’s findings that defendant’s 1984 Nevada robbery convictions qualified as serious felonies and strikes. (See Rodriguez, supra, 122 Cal.App.4th at p. 129.)
II. There Was Sufficient Evidence to Support the Court’s Finding That Defendant Served a Prior Prison Term for a Violent Felony
In a related argument, defendant argues that there was insufficient evidence that he suffered a prior prison term for a violent felony, based on one of his 1984 Nevada robbery convictions. We disagree.
Section 667.5, subdivision (a) provides, in relevant part: “Where one of the new offenses is one of the violent felonies specified in subdivision (c), in addition to and consecutive to any other prison terms therefor, the court shall impose a three-year term for each prior separate prison term served by the defendant where the prior offense was one of the violent felonies specified in subdivision (c).” Subdivision (c) lists robbery as a violent felony. (§ 667.5, subd. (c)(9).) A robbery conviction from another jurisdiction will support an enhanced sentence under section 667.5, subdivision (a), as long as the offense committed includes all of the elements of the particular felony as defined under California law. (§ 667.5, subd. (f).)
Defendant contends that since the People failed to produce evidence proving that his conduct in committing the 1984 Nevada robberies constituted a robbery as defined in California, they accordingly failed to prove that he served a predicate prison term for a violent felony, under section 667.5, subdivision (a). However, in light of our conclusion above (ante, § I), we conclude that there was sufficient evidence to support the court’s finding that defendant suffered a prior prison term for a violent felony, under section 667.5, subdivision (a).
III. There Was Insufficient Evidence to Support the Court’s Finding That Defendant’s 1978 Arizona Conviction for Vehicular Manslaughter Qualified as a Serious Felony and Strike
Defendant contends that there was insufficient evidence to support the court’s finding that his prior Arizona conviction for vehicular manslaughter qualified as both a serious felony and a strike. He specifically argues that there was no evidence that he personally inflicted great bodily injury on a non-accomplice. The People concede.
Defendant pled guilty to one count of felonious vehicular manslaughter, in violation of Arizona Revised Statutes (ARS) 13-156, subdivision (A)(3)(a) and 13-457, subdivision (C)(1). Gross vehicular manslaughter is defined similarly in Arizona and California as driving a vehicle “in the commission of an unlawful act, not amounting to a felony, and with gross negligence.” (§ 192, subd. (c)(1); former ARS 13-456, subd. (A)(3)(a); see Gentry v. MacDougall (9th Cir. 1982) 685 F.2d 322, 323, fn 1.) By virtue of section 1192.7, subdivision (c)(8), gross vehicular manslaughter under section 192, subdivision (c)(1), is “a serious felony if in the commission of the crime the defendant personally inflicts great bodily injury on any person other than an accomplice. [Citation.]” (People v. Gonzales (1994) 29 Cal.App.4th 1684, 1694; § 1192.8.)
Here, the Arizona record of conviction admitted into evidence consisted of the charging document, defendant’s plea agreement, a copy of the judgment, a presentence investigation report, and defendant’s prior conviction record. The only evidence that described defendant’s conduct regarding the 1978 vehicular manslaughter was the presentence investigation report, which stated that defendant stole a car, and was fleeing from the police in the stolen car, when he crashed into a truck. The crash resulted “in the death of the other driver.” Whether the other driver was or was not an accomplice was apparently not an issue at the time defendant pled guilty to vehicular manslaughter. Therefore, nothing in the record of conviction mentions the driver’s status. Furthermore, the People did not present any additional evidence to prove that he was not an accomplice. Thus, as contended by defendant, “the possibility exists that the [truck driver] was not an accomplice.” (People v. Henley (1999) 72 Cal.App.4th 555, 562 (Henley).) Moreover, “[n]othing in the record forecloses the possibility [he] was an accomplice.” (Ibid.)
Thus, as the People concede, there was no evidence in the record to support the trial court’s finding that defendant personally inflicted great bodily injury on someone other than an accomplice. We conclude that the trial court’s determination that defendant’s prior 1978 Arizona conviction for vehicular manslaughter qualified as a serious felony and a strike must be reversed, and the matter should be remanded to the trial court for further proceedings, if the People elect to retry. (See Monge v. California (1998) 524 U.S. 721, 730 [double jeopardy does not bar retrial of prior conviction allegation reversed on appeal for insufficient evidence], affirming People v. Monge (1997) 16 Cal.4th 826, 845; see also Henley, supra, 72 Cal.App.4th at pp. 560-566.) If the People elect not to retry the matter, the court must resentence defendant without the Arizona prior conviction. (People v. Jones (1999) 75 Cal.App.4th 616, 635.)
DISPOSITION
The matter is remanded to the trial court for retrial of the prior serious felony enhancement and strike allegations with regard to the 1978 Arizona conviction for vehicular manslaughter, and for resentencing in the event the allegations are not proved. Otherwise, the judgment is affirmed.
We concur: RICHLI, J., MILLER, J.