Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F01376
CANTIL-SAKAUYE, J.
This case involves an examination of Penal Code section 667, subdivision (a) and section 1192.7, subdivision (c) to determine the validity of defendant George Wilson’s sentence. A jury convicted defendant of infliction of corporal injury upon a spouse (§ 273.5, subd. (a); count two), assault with a deadly weapon, to wit, a knife (§ 245, subd. (a)(1); count three), and assault with a deadly weapon, to wit, a lamp (§ 245, subd. (a)(1); count four). The jury could not reach a verdict on count one, attempted murder, and the court declared a mistrial as to that count. The jury found three prior convictions (§§ 667, subd. (a); 667, subds. (b)-(i); 1170.12) to be true.
Hereafter, undesignated statutory references are to the Penal Code.
After denying defendant’s motion to strike the strike priors, the court sentenced defendant to state prison for an indeterminate term of 25 years to life for count three and a determinate term of 15 years for the three prior serious felony convictions. The court stayed the same sentence (§ 654) on counts two and four.
Defendant appeals. He contends that the true findings on the three prior felony convictions for purposes of section 667, subdivision (a) must be set aside because the current offenses, one count of infliction of corporal injury and two counts of assault with a deadly weapon, do not qualify as serious felonies. He also contends that the trial court abused its discretion in refusing to strike any of the strike priors. We accept the Attorney General’s concession that the prior serious felony enhancements totaling 15 years cannot attach to the infliction of corporal injury offense (count two). To the extent the record can be interpreted to conclude the trial court imposed the enhancements on count two, we will strike the enhancements attached to count two only. We will otherwise affirm the judgment.
FACTS
In January 2004, the victim planned to separate from defendant, her husband. One evening in late January 2004, the victim went to bed alone. In the night, defendant entered the victim’s room and stabbed her with a knife. The victim yelled for help. She was bleeding a lot. Defendant then hit her with a lamp and the victim yelled, “that’s enough, that’s enough.” Defendant retorted, “no, you deserve it.” As defendant ran down the stairs, he said, “‘I’m sorry. Dang it. Why did I do this,’” and left the house. The victim’s daughter called 911.
The victim sustained a laceration on her left inner forearm which penetrated to the muscle and appeared to have been inflicted by a sharp object, such as a knife. She also sustained about an inch deep laceration to her abdomen through the fat under the skin, through the anterior fascia of the abdominal wall, which also appeared to have been inflicted with a sharp object. No broken glass or other foreign objects were found in the wounds.
The victim told paramedics that she had been stabbed while she was asleep. The victim told a police officer that defendant stabbed her while she was sleeping and that he used a knife. At the hospital, the victim told doctors and nurses, “‘He stabbed me, he stabbed me.’” The victim told one of her sons that defendant had stabbed her. At the preliminary hearing, the victim admitted telling officers that defendant had stabbed her with a knife.
In July 2006, two and a half years later, defendant was arrested. The victim visited him 25 times at the jail.
At trial, the victim told a different story, claiming she had a fight with defendant during which she hit him in the back with a lamp, the light bulb broke, and she was cut.
Defendant did not testify, and he called no witnesses to testify on his behalf.
DISCUSSION
I.
Defendant contends his underlying offenses of infliction of corporal injury on a spouse, assault with a deadly weapon, to wit, a knife, and assault with a deadly weapon, to wit, a lamp, do not qualify as serious felonies since there was no allegation or finding of personal infliction of great bodily injury under section 12022.7 or personal use of a dangerous or deadly weapon under section 12022, subdivision (b)(1). Defendant contends the five-year enhancements (§ 667, subd. (a)) for his three prior serious felony convictions must be stricken.
The Attorney General concedes that infliction of corporal injury on a spouse is not a serious felony to which the enhancements for the priors may attach. The Attorney General asserts that the two assault offenses are serious felonies under section 1192.7, subdivision (c)(23), arguing that it was “impossible for the jury to find [defendant] guilty of assault with a deadly weapon without also finding that he had personally used a deadly weapon.” We accept the concession with respect to the felony spousal abuse offense and will order the enhancements stricken with respect to that count. We will conclude that the two assault offenses are serious felonies and that the enhancements for the priors were properly imposed.
Background
Count two of the information charged defendant with felony spousal abuse under section 273.5, subdivision (a). There was no allegation that the offense was a serious felony under section 1192.7, subdivision (c).
Count three charged defendant with a felony violation of section 245, subdivision (a)(1), “in that said defendant did willfully and unlawfully commit an assault upon [the victim], with a deadly weapon, to wit, a knife, and by means of force likely to produce great bodily injury.” The following notice was alleged in connection with count three: “‘NOTICE: The above offense is a serious felony within the meaning of Penal Code Section 1192.7(c)(23) in that the defendant(s) personally used a dangerous and deadly weapon.’”
Count four charged defendant with a felony violation of section 245, subdivision (a)(1), “in that said defendant did willfully and unlawfully commit an assault upon [the victim], with a deadly weapon, to wit, a lamp, and by means of force likely to produce great bodily injury.” The following notice was alleged in connection with count four: “‘NOTICE: The above offense is a serious felony within the meaning of Penal Code Section 1192.7(c)(23) in that the defendant(s) personally used a dangerous and deadly weapon.’”
Three serious felony prior convictions were alleged as follows: second degree murder (§ 187) in 1976; robbery with a firearm (§§ 211, 12022.5) in 1979; and second degree robbery (§ 212.5) in 1993, within the meaning of section 667, subdivision (a).
The instructions to the jury on the assault offenses provided, in relevant part, that defendant was charged in counts three and four with assault with a deadly weapon, to wit, a knife and a lamp, respectively, and that it had to find that “defendant did an act with a deadly weapon, that by its nature, would directly and probably result in the application of force to a person.” “Deadly weapon” was defined as “any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.”
The Attorney General notes that the trial court did not read to the jury that portion of the charging document that alleged that the current assault offenses were serious felonies under section 1192.7, subdivision (c)(23), nor instruct in the language of CALCRIM No. 3145 [“Personally Used Deadly Weapon (Pen. Code, §§ 667.61(e)(4), 1192.7(c)(23), 12022(b)(1) & (2), 12022.3”]. Defendant raised no instructional error in his opening brief. In his reply brief, he simply states with no citation to authority that there was no instruction on whether the assault offenses were serious felonies under section 1192.7, subdivision (c)(23). Defendant has waived the issue of any instructional error. In any event, whether a current felony conviction qualifies as a serious felony is a legal question for the court and by imposing the enhancements for the priors, we can infer that the trial court so found. (People v. Williams (2002) 99 Cal.App.4th 696, 700-701.)
The jury’s verdict on count three states that it found the defendant guilty of “the crime of violation of Section 245(a)(1) of the Penal Code... (Assault upon [the victim] with a deadly weapon, a knife), as charged in Count Three of the Information.” The jury’s verdict on count four states that it found the defendant guilty of “the crime of violation of Section 245(a)(1) of the Penal Code... (Assault upon [the victim] with a deadly weapon, a lamp), as charged in Count Four of the Information.”
In his reply brief, defendant argues “there was no specific finding that [he] intended to use [the lamp] as a deadly weapon....” The jury’s verdict otherwise refutes this claim. The jury’s verdict also refutes his similar claim about the knife.
The jury found that defendant had sustained the three prior serious felonies. The court imposed three five-year terms for the priors pursuant to section 667, subdivision (a).
Analysis
Defendant alleges, inter alia, that section 667, subdivision (a) is inapplicable because his current convictions are not serious felonies. Section 667, subdivision (a) provides, in relevant part, as follows:
“(a)(1) In compliance with subdivision (b) of Section 1385, 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. The terms of the present offense and each enhancement shall run consecutively. [¶]... [¶]
“(4) As used in this subdivision, ‘serious felony’ means a serious felony listed in subdivision (c) of Section 1192.7.”
In order for a prior serious felony conviction enhancement under section 667, subdivision (a), to apply, both the prior conviction and the current conviction must be serious felonies. Defendant does not challenge the serious felony finding with respect to his three priors and rightly so. (§ 1192.7, subd. (c)(1) [murder], (8) [personal use of a firearm], (19) [robbery].) He challenges only the serious felony finding with respect to his current convictions. We conclude that defendant’s current convictions for assault with a deadly weapon, to wit, a knife (count three) and a lamp (count four) are serious felonies and the trial court properly imposed a determinate term of 15 years to each count for the three priors.
Defendant contends that the violation of section 245 is not a serious felony unless the prosecution pled and proved that he personally used a dangerous or deadly weapon to commit the assault (§ 12022, subd. (b)(1)) to fall under section 1192.7, subdivision (c)(23) [personal use of a dangerous or deadly weapon] or personally inflicted great bodily injury (§ 12022.7) to fall under section 1192.7, subdivision (c)(8) [personal infliction of great bodily injury]. He relies upon People v. Shirley (1993) 18 Cal.App.4th 40 (Shirley), People v. Equarte (1986) 42 Cal.3d 456 (Equarte), People v. Williams (1990) 222 Cal.App.3d 911 (Williams), and People v. Austin (1985) 165 Cal.App.3d 547 (Austin). Our review of the above-mentioned cases demonstrates that defendant is mistaken.
In Equarte, the defendant was convicted of assault with a deadly weapon and the jury concluded that an allegation of personal infliction of great bodily injury had not been proved. The issue was whether a five-year enhancement (§ 667, subd. (a)) was properly imposed for the defendant’s prior conviction for attempted robbery. While the defendant did not challenge the prior as being a serious felony, he did contend that the current offense was not a serious felony since there was no allegation or finding that he had personally used a dangerous or deadly weapon. (42 Cal.3d at pp. 459-460, 462.) Equarte concluded that “under subdivision (c)(23), ‘any felony’ -- including assault with a deadly weapon -- may be found to constitute a serious felony if the prosecution properly pleads and proves that defendant personally used a deadly or dangerous weapon in the commission of the offense. Although the prosecution may establish the elements required by subdivision (c)(23) by pleading and proving a separate section 12022, subdivision (b) enhancement, a section 12022, subdivision (b) enhancement is not a necessary prerequisite to the application of subdivision (c)(23).” (Equarte, supra, at p. 465.) With respect to the lack of an allegation in the complaint and a jury finding that defendant personally used a dangerous or deadly weapon, Equarte determined that the defendant had failed to demur to the defect in the pleading so the issue was forfeited and that based on the evidence adduced at trial, there was “no doubt” that defendant had personally used a weapon. (Id. at pp. 466-467.)
Equarte was decided prior to the passage of Proposition 21 in the March 7, 2000, Primary Election. “Among the effects of Proposition 21 was the adoption of Penal Code section 1192.7, subdivision (c)(31), which deletes for serious felony purposes the personal use requirement for assault with a deadly weapon. Penal Code section 1192.7, subdivision (c)(31) states: ‘As used in this section, “serious felony” means any of the following: [¶]... (31) 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....’ (See Ballot Pamp., Primary Elec. (Mar. 7, 2000) text of Prop. 21, § 17, pp. 124-125.) As can be noted, Penal Code section 1192.7, subdivision (c)(31) merely requires that the accused previously have been convicted of ‘assault with a deadly weapon... in violation of Section 245.’ There is no requirement that the accused personally use the deadly weapon as in Penal Code section 1192.7, subdivision (c)(8) and (23).” (People v. Luna (2003) 113 Cal.App.4th 395, 398, orig. italics, disapproved on another point in People v. Delgado (2008) 43 Cal.4th 1059, 1070, fn. 4 [noting that “Proposition 21 made no change that renders conviction under the GBI prong of section 245(a)(1) a serious felony”].)
Subdivision (c)(31) should end the discussion of the matter. The jury convicted defendant of two counts of assault with a deadly weapon. The offense is specifically listed in section 1192.7, subdivision (c)(31). Since the offense is listed, there is no longer the requirement that he personally used the deadly weapon to fall under section 1192.7, subdivision (c)(23).
But neither party discusses section 1192.7, subdivision (c)(31) since the prosecutor did not allege that the assault offenses were serious felonies under that subdivision. Instead, the prosecutor alleged that the assault offenses were serious felonies based on defendant’s personal use of a deadly weapon under section 1192.7, subdivision (c)(23). Because the prosecutor’s charging decision negates reliance upon section 1192.7, subdivision (c)(31) (Equarte, supra, 42 Cal.3d at p. 467, fn. 13), we must continue our analysis and discussion.
Here, there were allegations but no jury findings that the assault offenses were serious felonies. We can infer that the trial court found that defendant personally used a knife and lamp to assault the victim and the overwhelming evidence supports its conclusion.
In Shirley, the defendant challenged the serious felony finding required by section 667, subdivision (a), with respect to his prior offense. In the prior case, the defendant had entered a plea of guilty to assault with a deadly weapon and admitted a great bodily injury enhancement; the court had struck the great bodily injury enhancement when the defendant was sentenced to state prison. (18 Cal.App.4th at pp. 42-44.) Shirley concluded that the prior still met the serious felony finding requirement, stating “[t]hough a court may strike an enhancement allegation in the interests of justice at sentencing when authorized to do so, the enhancement is not nullified by lenient acts of the sentencing court.” (Id. at p. 47.) In discussing the categories of offenses listed in section 1192.7, Shirley stated, “Equarte allows proof of a felony enhancement, such as section 12022, subdivision (b), to satisfy the requirement that the prosecution establish defendant’s personal use of a weapon. [Citation.] But without an enhancement or more specific pleading, assault with a deadly weapon under section 245, subdivision (a)(1), may not be considered a serious felony under section 1192.7, subdivision (c)(23).” (Shirley, supra, at pp. 44-45, italics added.)
Defendant misplaces his reliance upon Shirley. As that court recognized, an allegation and finding under section 12022, subdivision (b), is not required. A “more specific pleading” may satisfy the serious felony requirement and, here, the prosecutor alleged that the current assault offenses were serious felonies under section 1192.7, subdivision (c)(23).
In Williams, the defendant challenged the serious felony finding required by section 667, subdivision (a), with respect to his prior offense. In the prior case, the defendant had been convicted, on his plea of guilty, of assault with a deadly weapon or force likely to produce great bodily injury. (222 Cal.App.3d at p. 914, italics added.) To prove that the prior was for assault with a deadly weapon rather than assault by means of force likely to produce great bodily injury, the only evidence the trial court relied upon was “the triple hearsay statement in the probation report,” that is, “an assertion by the sheriff, reported by the probation officer that the victim told him (the sheriff) that [the defendant] held a knife to the victim’s back.” The defendant had had no opportunity to cross-examine the probation officer, the sheriff, or the victim. (Id. at pp. 914-918.) Williams concluded that the triple hearsay statement in the probation report “was far too unreliable to be used to prove the enhancement.” (Id. at p. 918.)
Defendant misplaces his reliance upon Williams. The issue here is the serious felony finding with respect to the current assault offenses. The factual basis for these current assault offenses had just been adduced at trial where defendant had an opportunity to cross-examine the victim as well as all the people who had spoken with the victim at or about the time the offenses occurred.
In Austin, the defendant challenged the serious felony finding required by section 667, subdivision (a), with respect to his prior offense for attempted exhibition of a firearm in the presence of a peace officer. (165 Cal.App.3d at p. 549.) Austin concluded that the prior offense was neither specifically listed nor did it fall under the categories claimed by the People, that is, subdivision (c)(8) [any felony in which the defendant uses a firearm] and (c)(23) [any felony in which the defendant personally used a dangerous or deadly weapon]. (Austin, supra, at pp. 550-552.)
Defendant misplaces his reliance upon Austin. The offense here is assault with a deadly weapon. Moreover, Austin was decided before Equarte.
The prosecutor gave express notice to defendant in the charging document that the current assault offenses were serious felony offenses under section 1192.7, subdivision (c)(23) which provides: “any felony in which the defendant personally used a dangerous or deadly weapon.” Defendant was on notice accordingly by the allegations in the information (complaint deemed an information) which cited subdivision (c)(23). The jury was instructed on and convicted defendant of assault with a deadly weapon, a knife (count three) and a lamp (count four). The issue then is whether there is any dispute that defendant personally used the knife and the lamp. As the Attorney General notes, there were no allegations that defendant was merely an aider and abettor or a coconspirator. Further, neither the defense nor the prosecutor argued and there was no evidence that someone other than defendant used the knife or the lamp. Thus, it is of no consequence that the jury did not expressly find that defendant “personally” used the knife or the lamp for purposes of the enhancements; the jury’s guilty verdict beyond a reasonable doubt that defendant assaulted his spouse with a deadly weapon, to wit, a knife (count three) and lamp (count four), means that he, and no one else, yielded the knife and lamp. Moreover, defendant concedes that he is not raising any issue with respect to whether he personally used the weapons.
With respect to infliction of corporal injury upon a spouse (count two), the offense is not expressly listed in section 1192.7, subdivision (c). Further, there was no allegation in the charging document that the corporal injury offense was a serious felony. Thus, there was no notice that the prosecutor would seek the enhancements as attached to count two. Moreover, the probation report did not cite the enhancements with respect to count two in recommending the sentence to be imposed. Finally, the Attorney General concedes that the enhancements are not applicable to count two. We accept the concession.
For count three (assault with a deadly weapon, to wit, a knife), the court imposed an indeterminate term of 25 years to life and a determinate term 15 years, that is, five years for each prior serious felony (§ 667, subd. (a)). For counts two (infliction of corporal injury upon a spouse) and four (assault with a deadly weapon, to wit, a lamp), the court imposed “the same terms in prison” but “stay[ed] those terms” pursuant to section 654. The abstract of judgment reflects “25 years to life, with possibility of parole on counts 2, 3, and 4. Sentences on Counts 2 and 4 stayed purs[uant to section] 654.” (Capitalization omitted.) The abstract also reflects 15 years for enhancements, that is, five years each for three prior serious felonies (§ 667, subd. (a)).
To the extent the court’s oral pronouncement of judgment is interpreted to mean that the court imposed the same sentence for count four, that is, 25 years to life plus the 15 years for the enhancements, and then stayed the sentence, the enhancements were properly imposed. To the extent the court’s oral pronouncement of judgment is interpreted to mean that the court imposed the same sentence for count two, that is, 25 years to life plus 15 years for the enhancements, and then stayed the sentence, the enhancements as attached to count two are stricken. The abstract of judgment requires no correction because it does not reflect any enhancements specifically attached to count two.
II.
Defendant next challenges the trial court’s refusal to strike the strike priors. He argues the strike priors were remote, that he had performed well on his job and had good prospects, and that the victim was “crazy,” “a severely aggravating person” and was the “instigator of this incident.” We find no abuse of discretion.
A trial court has the discretion to strike a strike prior only if the defendant falls outside the spirit of the Three Strikes law. (Pen. Code, § 1385; People v. Williams (1998) 17 Cal.4th 148, 161 (Williams); People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-531 (Romero).) In determining whether to strike a strike prior, the trial court “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (Williams, supra, at p. 161.)
The trial court’s “failure to... strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374.) In reviewing the trial court’s ruling for abuse of discretion, “we are guided by two fundamental precepts. First, ‘“[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citations.] Second, a ‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’ [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at pp. 376-377.) We find no such abuse of discretion here.
According to the probation report, defendant began violating the law when he was a juvenile and was declared a ward of the court when he was just 13 years of age. His first prior serious felony occurred when he was 19 years of age when he was convicted of second degree murder. He was housed at the then California Youth Authority (CYA). Just two months after he was paroled from CYA, he committed an armed robbery with personal use of a firearm and was sentenced to state prison. Misdemeanor violations of the law occurred in 1987, 1991, and 1992. In 1993, at 36 years of age, defendant committed a second degree robbery and was committed to state prison for 12 years. In 2001, he was convicted of misdemeanor driving under the influence. Defendant had parole violations. In 2004, at the time of defendant’s current felony offenses, he had several cases pending against him. In 2003, he was arrested for driving under the influence. He was also arrested for cruelty to a child (his 14-year-old son) with injury.
Defendant was unemployed and had no income. He had previously worked from 1983 to 1992 as a cabinet worker, from 1999 to 2000 as a HazMat worker, and from 2004 to 2006 as a maintenance worker. He had the support of his family and friends as well as the victim in the current case.
In denying the defendant’s motion to strike the strike priors, the court recognized its discretion as “restricted and limited” and that in certain kinds of cases, the three strikes law “can be an unduly harsh law” but that exceptions to its application had to be “justified and documented.” The court concluded that there was an “insufficient basis” for departing from application of the law to defendant primarily because of his criminal history which was “extremely violent, extremely dangerous” notwithstanding the “gap” between violent crimes since he had not shown he had been rehabilitated in that he continued to violate the law. The court outlined defendant’s convictions, commenting that there was a “pattern” or “persistence of violent conduct” related to defendant’s abuse of alcohol about which defendant had made a minimal effort at resolving.
The trial court’s reliance upon the defendant’s criminal history is supported by the record. Defendant’s work history does not remove him from the spirit of the three strikes law. Defendant’s claim that the victim is a “crazy” and “aggravating” person does not support his argument that he is deserving of a lesser sentence or that the assaults were justified or somehow mitigated. That the victim may have been suffering from some mental disability made her a more vulnerable victim and defendant more deserving of a longer sentence. The trial court did not abuse its discretion in denying defendant’s Romero motion.
DISPOSITION
The 15 years imposed and then stayed as enhancements for the three prior serious felony convictions (§ 667, subd. (a)) attached to the stayed 25-years-to-life sentence for count two (infliction of corporal injury upon a spouse) are stricken. In all other respects the judgment, including the imposition of the same enhancements attached to counts three and four, is affirmed.
We concur: NICHOLSON, Acting P. J., RAYE, J.