Opinion
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for partial publication. The portions of this opinion to be deleted from publication are identified as those portions between double brackets, e.g., [[/]].
As Modified March 3, 1996.
Review Granted May 28, 1997.
Previously published at 52 Cal.App.4th 1341
Susan S. Bauguess, Running Springs, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Sanjay T. Kumar, Pamela C. Hamanaka, Supervising Deputy Attorneys General, David A. Wildman, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, Associate Justice.
Russell D. Woodell was charged with first degree burglary. (Pen.Code, § 459.) It was also alleged that he suffered two prior violent or serious felony convictions in North Carolina (§§ 667, subds. (a), (e)(2)(A); 1170.12, subd. (c)(2)(A)) and served two prior prison terms (§ 667.5, subd. (b)). A jury found him guilty and found the allegations of prior convictions and prison terms to be true. He was sentenced to 35 years to life under the "Three Strikes" law. (§§ 667, subds. (b)-(i); 1170.12.)
All further statutory references are to the Penal Code unless otherwise provided.
In the published portion of this opinion, we discuss whether a North Carolina Court of Appeals opinion is admissible to prove a prior conviction. We conclude that the opinion is [[/
See footnote *, ante.
[[Facts]]**
DISCUSSION
[[I]]**
II
Woodell contends his prior North Carolina conviction for assault with a deadly weapon inflicting serious injury could not be used as a strike. He argues there was no admissible evidence to show that he personally used a deadly weapon. He believes his plea of guilty to an indictment charging the assault is not sufficient to show personal use because he could have been an aider and abettor. He claims the trial court erred in admitting over his objection the North Carolina Court of Appeals opinion, the only evidence of his personal use.
In order for a prior conviction from another jurisdiction to qualify as a strike under the Three Strikes law, it must involve the same conduct as would qualify as a strike in California. (See People v. Myers (1993) 5 Cal.4th 1193, 1201, 22 Cal.Rptr.2d 911, 858 P.2d 301.) In order to qualify as a strike in California, section 667, subdivision (d)(1) requires the offense to be either a violent felony as defined in section 667.5, subdivision (c) or a serious felony as defined in section 1192.7, subdivision (c). Section 667.5, subdivision (c)(8) lists any felony in which the defendant inflicts great bodily injury as provided for in section 12022.7. Section 12022.7 requires that the defendant personally inflict great bodily injury. Similarly, section 1192.7, subdivision (c)(23) lists any felony in which the defendant personally used a dangerous or deadly weapon. Simply aiding and abetting another who personally inflicts the injury or uses the weapon is not sufficient. (See People v. Piper (1986) 42 Cal.3d 471, 475-476, 229 Cal.Rptr. 125, 722 P.2d 899.)
Woodell contends the North Carolina Court of Appeals opinion was not admissible because it was not part of the "record of conviction." The court stated in People v. Guerrero (1988) 44 Cal.3d 343, 355, 243 Cal.Rptr. 688, 748 P.2d 1150: "[I]n determining the truth of a prior-conviction allegation, the trier of fact may look to the entire record of the conviction. [p] 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.... 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."
The court in People v. Myers, supra, 5 Cal.4th 1193, 22 Cal.Rptr.2d 911, 858 P.2d 301 applied the Guerrero rule to convictions from another jurisdiction. There the question was whether a trier of fact may look beyond the statutory elements of a foreign conviction to determine whether the conviction qualified as a "serious felony" for the purposes of section 667, subdivision (a).
The court stated that the trier of fact must be permitted to go beyond the least adjudicated elements of the offense committed in a foreign jurisdiction. (People v. Myers, supra, 5 Cal.4th at p. 1201, 22 Cal.Rptr.2d 911, 858 P.2d 301.) The court said, "[T]he 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 the elements of the comparable California serious felony offense." (Id. at p. 1195, 22 Cal.Rptr.2d 911, 858 P.2d 301.)
Our Supreme Court has never precisely defined the "record of conviction." In People v. Lewis (1996) 44 Cal.App.4th 845, 851, 52 Cal.Rptr.2d 338, however, the court noted that Myers spoke of that portion of the record " 'leading to imposition of judgment....' " (People v. Myers, supra, 5 Cal.4th at p. 1195, 22 Cal.Rptr.2d 911, 858 P.2d 301.) The Lewis court defined "record of conviction" as " 'all items that could have been used on appeal of that prior conviction....' The North Carolina opinion is not a document "leading to imposition of judgment." Moreover an appellate opinion is not always reliable to establish a foreign prior. The author of an appellate opinion gleans facts from the record and may characterize them so as to emphasize a point pertinent to the issues raised on appeal. Opinions gloss over or omit facts not germane or indispensable to a determination of a particular issue. For example, sentencing issues may not require a thorough recitation of the facts. The facts not contained in an opinion may be the very facts necessary to determine whether an offense qualifies as a serious or violent felony for purposes of the Three Strikes law. In the published portion of this opinion, for example, it is not even necessary to state the facts. An appellate opinion may constitute an official record, but it is problematic whether the opinion standing alone is reliable for showing all the pertinent facts to establish a prior conviction for purposes of the Three Strikes law. More should be required to send a person to prison for life.
In this case, however, the appellate opinion does not stand alone. There is also the indictment charging that Woodell "feloniously did assault [the victim] with a pair of scissors, a deadly weapon," to which Woodell pleaded guilty. Although the wording of the indictment would strongly indicate Woodell's personal use, it may not be sufficient to show personal use beyond a reasonable doubt. There is the possibility that Woodell was simply an aider and abettor instead of the primary actor. Even though the appellate opinion is not sufficient standing by itself, there is no reason it cannot be admitted to corroborate or explain the record of conviction; that is, the indictment and plea which are indisputably part of the record of conviction. Here the North Carolina opinion recited in detail the circumstances of the assault, pointing out that Woodell told a prison inmate he was going to kill somebody, that he was seen sharpening the weapon, and that he was seen stabbing the victim with a scissor blade.
This use of the appellate opinion does not violate our Supreme Court's injunction that the trier of fact may look to "the record of conviction--but no further ...." (People v. Guerrero, supra, 44 Cal.3d at p. 355, 243 Cal.Rptr. 688, 748 P.2d 1150.) The purpose of the injunction is to "effectively bar[ ] 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." (Ibid.) The use of an appellate opinion does not allow the prosecution to relitigate the crime.
Thus we conclude the appellate opinion was admissible in this case to explain the indictment and guilty plea. There is no merit to Woodell's claim there was insufficient evidence to show personal use.
[[III-IX
For reasons stated in the unpublished portion of this opinion the case is remanded. In all other respects the judgment is affirmed.
STONE, P.J., concurs.
YEGAN, Associate Justice, concurring and dissenting.[[/]]***