Opinion
A149707
02-26-2018
THE PEOPLE, Plaintiff and Respondent, v. KENNETH RAYMOND WARREN, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51608496)
This is an appeal from judgment after the trial court found true the enhancement allegation that defendant Kenneth Raymond Warren, in 1972, committed the serious and/or violent felony of assault on a peace officer with a deadly weapon. Based upon our review of the record, we reject defendant's sole claim that there was insufficient evidence to support the trial court's finding and, thus, affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
An amended criminal information was filed on July 28, 2016, charging defendant with the following crimes: (1) driving under the influence (DUI) within 10 years of a felony DUI offense (Veh. Code, §§ 23152, subd. (a), 23550.5) (count one); (2) driving with a 0.08-percent blood-alcohol level within 10 years of a felony DUI offense (Veh. Code, §§ 23152, subd. (b), 23550.5) (count two); and (3) driving with a suspended license (Veh. Code, § 14601.1, subd. (a)) (count three). It was further alleged that defendant had served six prior prison terms (Pen. Code, § 667.5, subd. (b)), and had been convicted of two prior strike offenses (Pen. Code, §§ 667, subds. (d) & (e), 1170.12, subds. (b) & (c)).
Unless otherwise stated, all statutory citations herein are to the Penal Code.
After the jury found defendant guilty as charged, a bifurcated bench trial was held with respect to the enhancement allegations. To prove the prior strike allegation, the prosecutor introduced into evidence an abstract of judgment stating that on May 9, 1972, defendant entered a guilty plea to assault with a deadly weapon on a peace officer in violation of section 245b ("Assault with deadly weapon on Peace Officer"). No other details about this crime were provided in the record. In addition, the prosecutor withdrew the other prior strike allegation.
The events surrounding the substantive charges against defendant are not relevant to the sole issue raised on appeal and, thus, are not set forth herein.
Following this bench trial, the trial court found true the allegations that defendant had served three prior prison terms and had been convicted in 1972 of the strike offense of assaulting a peace officer with a deadly weapon. Defendant was then sentenced to a total prison term of nine years, consisting of the three-year upper term for count one, doubled to six years pursuant to the Three Strikes Law; a concurrent eight-month term for count two, stayed pursuant to section 654; and three consecutive one-year terms for the prison priors. Count three was dismissed. This timely appeal followed.
DISCUSSION
Defendant raises a single issue for our review: Is there substantial evidence to uphold the trial court's finding that he was convicted in 1972 of the serious and/or violent felony (§§ 667, subds. (d) & (e), 1170.12, subd. (b)) of assaulting a peace officer with a deadly weapon in violation of section 245, subdivision (b)? He reasons that at the time of his 1972 conviction, the Penal Code included "constable" in its definition of "peace officer" (former § 830.1); yet, at the time of sentencing in this case, the term "constable" had been removed from the list of persons included in the definition of "peace officer," a circumstance requiring reversal of the trial court's finding because the "least adjudicated element of the 1972 conviction does not overlap with the current definition of a 'peace officer' in section 830.1." (See People v. Guerrero (1988) 44 Cal.3d 343, 352 ["when the record does not disclose any of the facts of the offense actually committed, the court will presume that the prior conviction was for the least offense punishable under the foreign law"].) We begin with the applicable legal framework.
Section 667 provides for the enhancement of sentences for habitual criminals. Subdivision (a) of the statute provides in relevant part that "any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately." Under subdivision (d) of the statute, "[t]he determination of whether a prior conviction is a prior felony conviction for purposes of subdivisions (b) to (i), inclusive, shall be made upon the date of that prior conviction and is not affected by the sentence . . . ." (§ 667, subd. (d)(1).)
For purposes of section 667, "serious felony" is defined as a serious felony listed in section 1192.7, subdivision (c), and "violent felony" is defined as a violent felony listed as such in section 667.5, subdivision (c). (§§ 667, subd. (d)(1), 1170.12, subd. (b).) Among the serious felonies listed in section 1192.7, subdivision (c), are "(11) assault with a deadly weapon or instrument on a peace officer" (§ 1192.7, subd. (c)(11)) and "(31) assault with a deadly weapon . . . or assault on a peace officer or firefighter, in violation of Section 245[.]" (§ 1192.7, subd. (c)(31).)
At the time of defendant's 1972 conviction, section 245, subdivision (b), provided: "Every person who commits an assault with a deadly weapon or instrument or by any means likely to produce great bodily injury upon the person of a peace officer or fireman, and who knows or reasonably should know that such victim is a peace officer or fireman engaged in the performance of his duties, when such peace officer or fireman is engaged in the performance of his duties shall be punished by imprisonment . . . for six months to life . . . ." (Stats. 1970, ch. 796, § 2, p. 1511.) This offense has since been recodified as section 245, subdivisions (c)-(d), and provides without significant change: "Any person who commits an assault with a deadly weapon or instrument, other than a firearm, or by any means likely to produce great bodily injury upon the person of a peace officer or firefighter, and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment . . . for three, four, or five years." (§ 245, subd. (c).) Under subdivision (d), an offender using a firearm or semiautomatic firearm to commit the crime is subject to greater terms of imprisonment. (§ 245, subd. (d)(1)-(2).)
Where, as here, a criminal information or complaint alleges the defendant was previously convicted of a serious or violent felony for purposes of section 667, the prosecution is required to prove each element of an alleged sentence enhancement beyond a reasonable doubt. (People v. Delgado (2008) 43 Cal.4th 1059, 1065.) "[I]f the prosecutor presents, by [certified criminal] records, prima facie evidence of a prior conviction that satisfies the elements of the recidivist enhancement at issue, and if there is no contrary evidence, the fact finder, utilizing the official duty presumption, may determine that a qualifying conviction occurred. [Citations.] [¶] However, if 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. [Citations.]" (Id. at p. 1066.)
When reviewing the trier of fact's findings with respect to an alleged prior strike offense, we apply the following well-established rules: "[W]e 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." (People v. Delgado, supra, 43 Cal.4th at p. 1067.) At the same time, issues of law decided on undisputed facts are generally reviewed on appeal de novo. (Martinez v. Brownco Construction Co. (2013) 56 Cal.4th 1014, 1018.)
Here, the amended information alleged defendant had a prior strike conviction in 1972 based on "PC245 ADW against a Peace Officer/Fireman." This was based upon evidence offered by the prosecution consisting of a public record stating that "On his plea of Guilty, he was convicted by the Court of violation of Section 245b of the Penal Code (Assault with deadly weapon on Peace Officer)[.]" Another record from the California Department of Corrections similarly identifies defendant's offense as "ADW on Peace Officer, 245b PC."
As defendant correctly notes, in 1972 a "constable" qualified as a "peace officer" for purposes of section 245, subdivision (d). However, in 1998, section 830.1 was amended in such a way that "constable" was deleted from the list of persons included in the statutory definition of "peace officer." (Stats. 1998, ch. 931, § 365, p. 6575); § 830 ["no person other than those designated in this chapter is a peace officer"].) According to defendant, this legislative change requires us to vacate the trial court's prior strike finding: "This Court must presume [his] 1972 assault conviction was for the least adjudicated element because the record does not disclose any facts pertaining to the crime. The assault could have been on a 'constable,' who met the definition of a peace officer during 1972, but does not meet that definition under the current version of section 830.1." As such, defendant concludes, "the 1972 conviction could have been based on an assault on a constable which would mean that it was not a strike conviction within the meaning of Penal Code section 667 ." (Italics added.) We disagree.
We accept defendant's initial premise that "the court may look to the entire record of the conviction to determine the substance of the prior [felony] conviction; but when the record does not disclose any of the facts of the offense actually committed, the court will presume that the prior conviction was for the least offense punishable under the [statutory] law." (People v. Guerrero, supra, 44 Cal.3d at p. 352.) As the California Supreme Court explains: "Such a rule is both fair and reasonable. To allow the trier of fact to look to the entire record of the conviction is certainly reasonable: it promotes the efficient administration of justice and, specifically, furthers the evident intent of the people in establishing an enhancement for 'burglary of a residence'—a term that refers to conduct, not a specific crime. To allow the trier to look to the record of the conviction—but no further—is also fair: it effectively bars the prosecution from relitigating the circumstances of a crime committed years ago and thereby threatening the defendant with harm akin to double jeopardy and denial of speedy trial." (Id. at p. 355, first italics added.)
However, in this case, even assuming for the sake of argument (and in the absence of any indication in the record) that defendant's 1972 conviction involved an assault on a constable, his conviction would nonetheless qualify for the prior strike enhancement because, as the record reflects, he committed the assault with a deadly weapon. "[A]ssault with a deadly weapon" in violation of section 245 is a serious felony under section 1192.7, subdivision (c)(31), regardless of whether the victim is a peace officer engaged in official duties or merely a private citizen. (§ 1192.7, subd. (c)(31); see also People v. Semien (2008) 162 Cal.App.4th 701, 709 ["section 1192.7, subdivision (c)(31), says ' "serious felony" ' includes 'assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of Section 245.' (Italics added.) . . . . [S]ection 245(c) states: 'Any person who commits an assault with a deadly weapon or instrument, other than a firearm, or by any means likely to produce great bodily injury upon the person of a peace officer or firefighter . . . shall be punished by imprisonment in the state prison' "].)
Thus, this is not a case, as defendant suggests, where "the mere fact that a prior conviction occurred under a specified statute does not prove the serious felony allegation" because the specified statute could be violated in a way that does not qualify for the alleged enhancement. (Cf. People v. Delgado, supra, 43 Cal.4th at p. 1065.) Rather, the evidence offered by the prosecutor in this case—which identified defendant's past offense as assault "with deadly weapon"—was sufficient to prove the amended information's serious or violent felony allegation notwithstanding the post-1972 deletion of "constable" from the statutory list of individuals qualifying as peace officers under section 245. As the California Supreme Court has made clear, for purposes of determining whether a defendant's prior offense qualifies as a serious or violent felony, it is the defendant's "conduct, not [his or her] specific crime" that matters. (People v. Guerrero, supra, 44 Cal.3d at p. 355; see also People v. Myers (1993) 5 Cal.4th 1193, 1195 ["the trier of fact may consider the entire record of the proceedings leading to imposition of judgment on the prior conviction to determine whether the offense of which the defendant was previously convicted involved conduct which satisfies all of the elements of the [alleged] serious felony offense" (italics added)].)
Finally, in reaching this conclusion, we also reject defendant's assumption that deletion of the term "constable" from the statutory list of individuals qualifying as "peace officers" undermines the trial court's determination that he was convicted in 1972 of a serious or violent felony because he could have committed the section 245, subdivision (b), offense by assaulting a constable with a deadly weapon and, at the time of sentencing in this case, a constable was not a "peace officer" within the meaning of section 830.1. As the California Supreme Court recently explained, a person's employment title "does not determine his or her status as a peace officer under section 830.33"; rather, peace officer status has also been conferred on other public employees whose " 'primary duty' " is " 'the enforcement of the law.' " (People v. Pennington (2017) 3 Cal.5th 786, 788, 794; accord, Martin v. Superior Court (1991) 230 Cal.App.3d 1192, 1197-1198 ["A commonsense construction of the phrase 'law enforcement officer' necessarily includes a peace officer as defined in section 830.37, subdivisions (a) and (b). 'Law enforcement officer' has been defined as '[a] policeman, sheriff, deputy sheriff, constable, or other officer whose duty it is to be vigilant in discovering violations of the criminal laws and ordinances and to arrest offenders.' (Ballentine's Law Dict. (3d ed. 1969).) Section 830.37, subdivision (a) defines as a peace officer any member of an arson investigating unit with a county fire department, 'if the primary duty of these peace officers is the detection and apprehension of persons who have violated any fire law or committed insurance fraud.' (§ 830.37, subd. (a), italics added.)" (fn. omitted)].) And, relevant here, defendant does not argue (much less demonstrate) that the deletion of "constable" from the statutory list had anything to do with a legislative change in the duties assigned to public employees employed as constables. Rather, it related to the Legislature's decision to eliminate the justice courts and the office of constable, primarily for fiscal reasons. (See Cal. Law Revision Com. com., Deering's Ann. Pen. Code (2008 ed.) foll. § 830.1, p. 271; 28 Cal. Law Revision Com. Rep. (1998) p. 51; former Gov. Code, § 27820, repealed by Stats. 1996, ch. 120, § 4, p. 460 [repealed section related to duties of constables].) As such, defendant's argument that the court erred by finding that he was convicted of a strike offense in 1972 based upon the legislative removal of "constable" from the statutory list of individuals qualifying as peace officers is not tenable.
Accordingly, the trial court's finding of truth with respect to the allegation of defendant's 1972 strike offense must be upheld. (People v. Tenner (1993) 6 Cal.4th 559, 567 [reviewing court must affirm if, after viewing the record in a light most favorable to the judgment, there is substantial evidence supporting the fact finder's determination].)
DISPOSITION
The judgment is affirmed.
/s/_________
Jenkins, J. We concur: /s/_________
McGuiness, Acting P.J. /s/_________
Pollak, J.
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------