Opinion
A146218
10-30-2017
THE PEOPLE, Plaintiff and Respondent, v. SHANE LEVERN WALTON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC077060A)
Defendant Shane Levern Walton appeals from a judgment after bench trial finding him guilty of a felony and three misdemeanor offenses, and finding true the allegations that he suffered numerous felony priors and prison priors and a serious felony strike prior. Walton challenges only the strike prior, contending we must reverse the trial court's finding as not supported by substantial evidence and because it was decided by a judge rather than a jury. We disagree. Substantial evidence supports the trial court's finding, and defendant concedes the trial court did not decide any facts beyond the elements of the strike prior that could entitle him to a jury trial. Therefore, we affirm.
BACKGROUND
The San Mateo County District Attorney charged Walton in an amended information with vehicle theft (Veh. Code, § 10851, subd. (a)), and three misdemeanor offenses, including receipt of stolen property (Pen. Code, § 496, subd. (a)), driving with a suspended license (Veh. Code, § 14601) and possession of drug paraphernalia (Health & Safety Code, § 11364.1). The prosecution also contended in a serious or violent felony strike prior allegation (§ 1170.12, subd. (c)(1)) that Walton was convicted in 1990 of assault with a deadly weapon in violation of section 245, subd. (a)(1), and further alleged that Walton had numerous prior felony convictions and five prison priors (§ 667.5, subd. (b)). Walton pleaded not guilty and denied all allegations.
Except as otherwise indicated, statutory references are to the Penal Code.
At a May 2014 pretrial conference, the court set a trial date. Walton's counsel advised the court, "we would like to go ahead at this time and we are going to be waiving jury in this matter." The court, after questioning defendant directly, informed him that he could be convicted after a bench trial to a maximum of "13 years if the strike is found valid and you are convicted on all the priors." Walton confirmed that he understood this. The court then vacated the jury trial, found Walton had "made a knowing, voluntary and intelligent waiver of his rights to a jury trial," and set a date for a court trial.
A one-day bench trial took place on May 1, 2015. At its commencement, the parties addressed defense counsel's motion in limine regarding the strike prior allegation to exclude evidence other than three documents comprising the certified record of conviction for a prior offense by Walton. On the merits, the prosecution's witnesses testified that police officers stopped Walton in the City of Menlo Park as he was driving a Jeep that had been reported stolen. Officers searched the Jeep and found a crack pipe and a backpack containing identification for Walton as well as for the rightful owner of the Jeep. The prosecution proffered certified court records with respect to its allegations that Walton had a prior strike conviction, prior felony convictions and prison priors.
At the close of the evidence, the court invited closing statements, and the prosecutor addressed the four charges. The court then asked, "Do you want to address the priors at this time as well? [¶] . . . [¶] I have to make findings on those." Without objection from defense counsel, the prosecution addressed the priors, including the strike prior. Defense counsel did so in his closing as well.
The court found Walton guilty of felony vehicle theft and the three misdemeanor charges and found true the allegations that he had a prior serious or violent felony strike conviction, five prior prison felony convictions, and prior felony convictions. The court sentenced Walton to serve a total of six years in state prison. This was comprised of three years as the middle term for the vehicle theft conviction and three additional years for the prior strike conviction. The court stayed the sentence for various special allegations based on section 654 and sentenced Walton on each of the misdemeanor counts to six months in county jail, all running concurrent, with six months of credit for time served. Walton filed a timely notice of appeal from the subsequent judgment.
DISCUSSION
Walton raises two issues on appeal. First, he contends the evidence was insufficient to support the trial court's finding that he had a prior serious or violent felony strike conviction under section 1170.12. Second, he argues he is entitled to a jury trial on that allegation. We will address each of these arguments in turn.
I.
Substantial Evidence Supports the Trial Court's Finding That Walton Had a Prior
Serious or Violent Felony Strike Conviction.
Walton first argues that the trial court erred in finding he had a prior strike conviction that doubled his sentence because the prosecution failed to establish that his 1990 conviction pursuant to a plea agreement was for a serious or violent felony. He points out that the complaint in his 1990 case charged him in count 2 with violating section 245, subdivision (a)(1), which at the time proscribed two types of conduct, assault with a deadly weapon and assault by means of force likely to produce great bodily injury (GBI), but that only assault with a deadly weapon can be a basis for his prior strike conviction. He contends that none of the evidence submitted to the trial court establishes that he was convicted for this particular assault. We disagree.
The prosecution here included in its felony vehicle theft count against Walton the allegation that he suffered a prior serious or violent felony strike conviction which, if true, would double his sentence under section 1170.12, subdivision (c)(1). Subdivision (b) of section 1170.12 defines a "prior serious and/or violent conviction of a felony" as including "any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state." Section 1192.7, subdivision (c)(1) defines as a "serious felony," among other things, "assault with a deadly weapon . . . in violation of Section 245." (§ 1192.7, subd. (c)(31).) It does not include assault with force likely to inflict great bodily injury.
Section 1170.12, subdivision (c)(1) states in relevant part: "If a defendant has one prior serious and/or violent felony conviction as defined in subdivision (b) that has been pled and proved, the determinate term . . . shall be twice the term otherwise provided as punishment for the current felony conviction."
Walton is correct in observing that as of 1990, section 245, subdivision (a)(1) proscribed both assault with a deadly weapon and assault by means of force likely to produce great bodily injury. (See People v. Delgado (2008) 43 Cal.4th 1059, 1065 (Delgado) [describing former provision]; see 2011 Cal. Legis. Serv., ch. 183 (Assem. Bill No. 1026) [amending statute to place latter offense in subdivision (a)(4)].) Thus, if the evidence shows only that a defendant has violated section 245, subdivision (a)(1) at a time prior to the effective date of the amendment that separated the two offenses, it will not be clear that he or she committed a serious felony, since assault with a deadly weapon is, but assault with force likely to inflict great bodily injury is not, a serious felony under section 1192.7, subdivision (c).
The question here is whether substantial evidence shows beyond a reasonable doubt that Walton was convicted not only of violating former section 245, subdivision (a)(1), but of doing so by committing assault with a deadly weapon. (See Delgado, supra, 43 Cal.4th at p. 1067.) We find our answer in Delgado. There, the California Supreme Court addressed a very similar situation. The jury had convicted the defendant of felony offenses, following which a court trial was held on the allegation that he had a prior serious felony conviction. (Id. at p. 1063.) As here, the prior offense was a violation of section 245, subdivision (a)(1), which at the time of the conviction punished either of two alternative offenses: assault with a deadly weapon other than a firearm and assault by means likely to produce great bodily injury. (Id. at p. 1065.) As here, the prosecution relied for proof of the prior serious felony allegation on a package of certified documents that included the abstract of judgment, and "[t]he abstract specified the statute violated as '[Penal Code section] 245(A)(1)' and described the crime as 'Asslt w DWpn.' " (Id. at pp. 1063, 1064.) The defendant contended this notation was insufficient to prove he had been convicted of assault with a deadly weapon as opposed to assault with force likely to produce great bodily injury. The trial court found the evidence sufficient and the appellate court affirmed. (Id. at pp. 1063, 1064.)
Our high court agreed. It first observed that "[w]here, as here, 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," including certified documents such as abstracts of judgment. (Delgado, supra, 43 Cal.4th at pp. 1065, 1066.) It then distinguished prior cases in which ambiguities had led courts to conclude an abstract or other documents were insufficient: "The official abstract of judgment for defendant's prior conviction first identifies the statute under which the conviction occurred as 'PC' '245(A)(1),' then separately describes the offense as 'Asslt w DWpn.' Defendant does not dispute that these notations stand, respectively, for 'Penal Code section 245(a)(1)' and 'assault with a deadly weapon.' [¶] The latter description tracks one, but only one, of the two specific, discrete, disjunctive, and easily encapsulated forms of aggravated assault set forth in section 245(a)(1). Unlike those at issue in [People v.] Rodriguez [(1998) 17 Cal.4th 253], [People v.] Luna [(2003) 113 Cal.App.4th 395], and [People v.] Banuelos [(2005) 130 Cal.App.4th 601], the instant abstract does not mention the other specific, discrete, and disjunctive form of section 245(a)(1) violation, involving force likely to produce GBI. And unlike the abstract at issue in [People v.] Williams [(1996) 50 Cal.App.4th 1405], it does not simply cite the statute violated, without any reference to the underlying conduct. Any inference that this notation simply refers to the statute generally is thus sharply diminished." (Id. at p. 1069.) The Delgado court concluded: "The People, therefore, presented prima facie evidence, in the form of a clear, presumptively reliable official record of defendant's prior conviction, that the conviction was for the serious felony of assault with a deadly weapon. Defendant produced no rebuttal evidence. Utilizing the presumption of official duty, and drawing reasonable inferences from the official record, the trial court, as a rational trier of fact, could thus properly find beyond reasonable doubt that a prior serious felony had occurred." (Id. at p. 1070.)
This case is remarkably similar to Delgado. The abstract of judgment reflecting Walton's 1990 conviction lists in the box for "Code" the typewritten abbreviation "PC," obviously referring to the Penal Code. It lists in the box for "Section" the typewritten section and subdivision designation "245(a)(1)." It further specifies in the box labelled "Crime" the typewritten description "Assault W/Deadly Weapon." Thus, just as in Delgado, the abstract separately identifies the crime as "one, but only one, of the two specific, discrete, disjunctive, and easily encapsulated forms of aggravated assault set forth in section 245(a)(1)," without mentioning the other "specific, discrete, and disjunctive form of section 245(a)(1) violation, involving force likely to produce GBI." (See Delgado, supra, 43 Cal.4th at p. 1069.)
This abstract is a certified copy of a document with a partially obscured heading that includes "Other Sentence Choice." The parties agree this is the abstract of judgment in the 1990 case. It states: "Defendant was convicted of the commission of the following felonies (or alternate felony/misdemeanor): . . . ." In the columns on this form that are marked "Count," "Code," "Section Number" and "Crime," respectively, are typewritten the following: "2," "PC," "245(a)(1)" and "Assault w/Deadly Weapon." The date of the conviction is listed as " 10/15/90" and there is an "X" in the box marked "Plea" under the "Convicted By" column. There are separate boxes for enhancements, but none of them are checked or contain any written or typewritten information.
The second letter "a" in "Assault" appears to have been typed over some other letter. Walton does not argue this creates any ambiguity.
This distinguishes the case Walton brought to our attention after briefing was complete, People v. Learnard (2016) 4 Cal.App.5th 1117, review granted, 389 P.3d 5 (Feb. 22, 2017). Its abstract of judgment described the offense as both assault with a deadly weapon and great bodily injury ("Assault 2 deadly wpn/GBI"). (Id. at p. 1120.) --------
Walton attempts to distinguish Delgado by claiming that the record here contains ambiguities that, as in some of the cases Delgado cited, led courts to hold there was insufficient evidence to sustain the serious felony finding. He states that here "[n]o accompanying documentation explains the use of the abbreviation used." This argument flies in the face of Delgado. One cannot seriously contend that the language "Assault W/Deadly Weapon" on the abstract here is less clear in its meaning than the "Asslt w DWpn" notation the court found unambiguous in Delgado.
Walton further contends that "[n]othing indicates [the phrase on the abstract] was a deliberate choice rather than simply an abbreviation of 'count 2.' " According to Walton, "at that time it did not matter how the crime was described and there was no reason to challenge any clerical error." We reject this argument as well, based on Delgado. There, the court considered a very similar argument by the defendant that "the notation [of the crime] . . . may simply be a clerk's shorthand nickname for section 245(a)(1) in general." (Delgado, supra, 43 Cal.4th at p. 1071.) The court continued, "Thus, [the defendant] urges, no significance can attach to the particular words included or omitted. He stresses that, when the instant abstract was prepared in 1999, there was no penal reason to identify which specific prong of section 245(a)(1) had been violated . . . . Hence he urges, we cannot assume that the clerk who prepared the 1999 abstract attached any importance to the form of notation used to describe defendant's conviction." (Ibid.)
The Delgado court rejected this argument. The court noted that "the abstract is a contemporaneous, statutorily sanctioned, officially prepared clerical record of the conviction and sentence. It may serve as the order committing the defendant to prison (§ 1213), and is ' "the process and authority for carrying the judgment and sentence into effect." [Citations.]' [Citations.] . . . When prepared by the court clerk, at or near the time of judgment, as part of his or her official duty, it is cloaked with a presumption of regularity and reliability." (Delgado, supra, 43 Cal.4th at p. 1070.) Thus, the court concluded, "[w]hatever the penal significance of the abstract's description, the trial court was entitled to infer that it had been accurately prepared." (Id. at p. 1071.) We apply this same reasoning here.
Walton further contends that the 1990 abstract is because it "was prepared a full two months after the plea and by a judge who did not take the plea." But, since the judgment is the pronouncement of sentence (People v. Perez (1979) 23 Cal.3d 545, 549, fn. 2), the abstract of judgment cannot be prepared before sentencing, and here it was prepared within days of the sentencing hearing and signed by the judge who presided over that hearing.
The 1990 abstract is itself sufficient to affirm the trial court's finding. We also disagree with Walton's contentions about the insufficiency of other documentary evidence of his 1990 conviction. He claims count 2 of the 1990 complaint alleges assault "either as an assault with a deadly weapon or an assault by means of force likely to produce great bodily injury" and, therefore, is not itself "a reliable indicator of the factual basis of the plea," and that the complaint's inclusion of both types of assault renders the abstract ambiguous. This mischaracterizes count 2. It alleges not in the alternative but cumulatively that "a violation of California Penal Code Section 245(a)(1) (assault with a deadly weapon—other than firearm) was committed by the above-named defendant(s), as follows to wit: The same defendant(s) did commit an assault upon the person of Larry Holliman, with a deadly weapon or instrument other than a firearm, to wit: tire iron and bumper jack, and by means of force likely to produce great bodily injury." (Italics added.) Thus count 2 asserts both, not "either," of the two crimes punished by former section 245, subdivision (a)(1).
Walton also contends that the minutes reflecting his plea of nolo contendere do not "support[] that this was an admission to an assault with a deadly weapon." This too is incorrect. The court minutes identify the crime to which he pled nolo contendere as "Count 2 PC 245(A)(1)." (Italics added.) In referencing count 2 of the complaint, the minutes indicate Walton was pleading to the offense charged in that count, namely assault with a deadly weapon, specifically, a tire iron and bumper jack, and by means of force likely to produce great bodily injury.
In short, we conclude, based on Delgado, that the abstract meets the prosecution's burden of proof, and reject Walton's contentions that the 1990 complaint and the minutes reflecting his plea create ambiguities that undermine the reliability of the abstract.
II.
There Is No Jury Trial Issue In This Case.
Walton also argues that, even if substantial evidence supports the trial court's finding, we must reverse because he was entitled to a jury trial on the serious or violent felony strike allegation. As we have discussed, Walton waived his right to a jury trial. Walton contends that he nonetheless had a right to jury trial on the strike allegation because his Sixth Amendment right to a trial on the strike did not become clearly established until after he waived a jury trial and he could not knowingly have waived that then-unknown right. The heading for this argument is: "The Sixth Amendment Demands Jury Determination of Non-Elements of the Prior Offense." He begins the argument by stating, "To the extent that the assault could be a serious felony strike based on non-elements, it was for a jury to make the necessary findings beyond a reasonable doubt." Further, he concludes by stating that "to the extent that this court remands this matter for further proceedings, it should order that any non-element findings must be made by a jury."
Walton's argument is based on a United States Supreme Court case issued the year before his bench trial, Descamps v. United States (2013) 570 U.S. ___, 133 S.Ct. 2276 (Descamps). In Descamps, the court held that under the federal sentence enhancement statute, trial judges could not make findings about a prior crime "beyond merely identifying a prior conviction," in part because judicial findings on such factual issues affecting a sentence would "raise serious Sixth Amendment concerns." (Id. at p. 2288.)
In the wake of Descamps, a number of our appellate courts have recognized that judicial fact finding about a prior offense that goes beyond determining the elements of that offense is incompatible with the U.S. Supreme Court's view of the Sixth Amendment right to jury trial. (See People v. Wilson (2013) 219 Cal.App.4th 500; People v. Marin (2015) 240 Cal.App.4th 1344, 1363; People v. Saez (2015) 237 Cal.App.4th 1177, 1190, 1207-1208; People v. Denard (2015) 242 Cal.App.4th 1012, 1033; People v. Eslava (2016) 5 Cal.App.5th 498, 508-514, review granted, 388 P.3d 819, Feb. 15, 2017.)
The People respond that Walton waived any right he had to a jury trial on the strike by waiving the right to a jury trial generally. (See People v. Berutko (1969) 71 Cal.2d 84, 94 [" 'It is settled that where a defendant waives a jury trial he is deemed to have consented to a trial of all of the issues in the case before the court sitting without a jury' "].) We need not decide the waiver issue for two reasons. First, Walton fails to explain what "non-elements" the trial court decided in this case (or would have to decide if we had agreed with his argument that there was insufficient evidence to support the strike prior). At oral argument, Walton's counsel conceded that this case is not about non-elements, that is, all the trial court did here was identify which of two crimes the defendant was convicted based on documents in the case file. Since the trial court made no findings of fact about what defendant actually did or did not do in connection with the prior crime, the holding of Descamps is inapposite and does not entitle him to a jury trial.
Second, the argument in Walton's opening brief was conditional: that he should be afforded a jury trial if we held the evidence of the strike prior insufficient and remanded the case. But we do not hold the evidence insufficient and there is thus no basis for a remand. For that reason, too, we need not decide whether his general waiver of the right to jury trial constituted a knowing and voluntary waiver that extended to the strike prior. (See People v. Berutko, supra, 71 Cal.2d at p. 94; People v. Sivongxxay (2017) 3 Cal.5th 151, 165-172.)
DISPOSITION
The judgment is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
MILLER, J.