Opinion
C076210
02-21-2018
THE PEOPLE, Plaintiff and Respondent, v. JAMES ARTURO DIAZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 62-117814)
A jury convicted defendant James Arturo Diaz of first degree burglary, possession of a deadly weapon, receiving stolen property, and possession of burglar's tools. The trial court found that defendant's prior Texas conviction for aggravated assault was a strike and sentenced defendant to 25 years to life, plus 11 years four months.
Defendant now contends (1) there is insufficient evidence that he possessed burglar's tools; (2) the trial court erred in admitting evidence obtained from a search incident to defendant's arrest because there was no probable cause to arrest him; and (3) controlling law prohibits reliance on facts beyond the least adjudicated elements of his prior conviction to establish that the prior conviction qualifies as a strike in California.
We will reverse the trial court's determination that defendant's prior Texas conviction qualifies as a strike and remand the matter for further proceedings consistent with People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo). We will otherwise affirm the judgment.
BACKGROUND
City of Roseville Police Officer Stephen Chipp and other officers responded to a call that a man drove slowly through the caller's neighborhood in a Ford Mustang and then walked behind some houses late at night. The caller reported that the man carried a knapsack. Officers found the Mustang and began to observe it. The car was registered to defendant.
Eventually Officer Chipp saw defendant place an item the size of a bag or backpack in the Mustang; Officer Chipp made contact with defendant. Defendant said he was looking for the home of his friend and pointed to a house. Officer Chipp contacted the resident of the house, who said she did not know defendant or his friend.
A search of defendant's person yielded a folding knife, a flashlight and keys to the Mustang. Officer Chipp found two backpacks in the car containing a laptop, a pair of gloves, a Go Pro camera, a collapsible metal baton, and a bottle of rum. There was also a metal pry bar and mallet in the Mustang.
The next day, a woman in the neighborhood reported items missing from her garage, including a laptop, a Go Pro camera, a backpack, and a bottle of rum. The woman did not know defendant and did not give him permission to take her property.
The jury convicted defendant of first degree burglary (Pen. Code, § 459—count one), possession of a deadly weapon (a billy) (§ 22210—count two), receiving stolen property (§ 496, subd. (a)—count three), and possession of burglar's tools (§ 466—count four). Defendant waived a jury trial on the prior strike conviction allegations and the trial court found defendant's prior Texas conviction for aggravated assault was a strike. The trial court denied defendant's section 1385 motion to dismiss the prior strike allegations and sentenced defendant to 25 years to life, plus 11 years four months.
Undesignated statutory references are to the Penal Code.
Additional facts are included in the discussion as relevant to the contentions on appeal.
DISCUSSION
I
Defendant claims there is insufficient evidence that he possessed burglar's tools. He argues a folding knife is not a burglar's tool within the meaning of section 466. We review de novo issues involving the interpretation of a statute. (People v. Mgebrov (2008) 166 Cal.App.4th 579, 585.)
Section 466 provides: "Every person having upon him or her in his or her possession a picklock, crow, keybit, crowbar, screwdriver, vise grip pliers, water-pump pliers, slidehammer, slim jim, tension bar, lock pick gun, tubular lock pick, bump key, floor-safe door puller, master key, ceramic or porcelain spark plug chips or pieces, or other instrument or tool with intent feloniously to break or enter into any building . . . is guilty of a misdemeanor. . . ."
Defendant relies on People v. Diaz (2012) 207 Cal.App.4th 396 (Diaz), in which the Fourth District Court of Appeal said a device must be similar to those enumerated in section 466 to constitute a burglar's tool. (Diaz, supra, 207 Cal.App.4th at pp. 401, 404 [section 466 is limited to tools used to gain access to property; it is not enough that a common implement may be used for breaking and entering].) But other courts have rejected the Diaz analysis, holding instead that the plain import of section 466 is to proscribe the possession of tools possessed with the intent to be used for burglary. (People v. Kelly (2007) 154 Cal.App.4th 961, 967-968 (Kelly) [slingshot and box cutter are burglar's tools]; In re H.W. (2016) 2 Cal.App.5th 937, 944 [pliers used to remove antitheft device from jeans constitute a burglar's tool].)
The California Supreme Court granted review in In re H.W. (Nov. 22, 2016, S237415) on the issue whether a pair of pliers which the defendant used to remove an antitheft device from a pair of jeans qualifies as a burglary tool within the meaning of section 466, but the opinion remains citable for persuasive value. (Cal. Rules of Court, rule 8.1115(e)(1).)
Defendant's folding knife would be a burglar's tool even under the analysis in Diaz. Under Diaz, a folding knife is an instrument or tool similar to a screwdriver, which is specifically listed in section 466. It can be used to pry open doors and gain access to property. (See, e.g., People v. Farnam (2002) 28 Cal.4th 107, 126, 129 [knife could be used to cut locked screen door]; People v. Hanz (1961) 190 Cal.App.2d 793, 799, 801 [burglary accomplished by cutting front window screen and prying window open with a knife]; People v. Sparks (1947) 82 Cal.App.2d 145, 155 [pocket knife could be used to cut screens]). Under Kelly and In re H.W., possession of a folding knife with the intent to use it for a burglary violated section 466. The offense was complete when defendant possessed the knife with the intent to use it for a burglarious purpose.
Defendant possessed the folding knife when Officer Chipp contacted him. Defendant also possessed stolen property. In addition, defendant had a metal pry bar, similar to the crowbar listed in section 466. Defendant's possession of those items, along with his presence in a neighborhood where he did not live in the early morning hours, and his deception about why he was in the neighborhood, were sufficient to support the jury's finding that defendant possessed an instrument or tool with the intent to break or enter into a building within the meaning of section 466. (People v. Southard (2007) 152 Cal.App.4th 1079, 1088-1090 [possession of items not listed in section 466 but commonly used by burglars to facilitate a burglary can evidence felonious intent].)
II
Defendant next claims the trial court erred in admitting evidence obtained from the search incident to his arrest because there was no probable cause to arrest him.
The trial court denied defendant's section 1538.5 motion to suppress the evidence Officer Chipp seized from defendant. It ruled there was probable cause to arrest defendant for prowling based on the call to police, defendant's absence from his car for over an hour, the hour of night, defendant's false statements, and his possession of a backpack, flashlight and folding knife. The trial court found defendant's absence from his car strong circumstantial evidence that he was on private property at some point. The trial court concluded the search of defendant's car was lawful as a search incident to arrest because Officer Chipp was looking for evidence of a burglary or theft.
In reviewing the trial court's denial of a suppression motion, we consider the record in the light most favorable to the trial court's disposition and defer to the trial court's factual findings, if supported by substantial evidence. (People v. Tully (2012) 54 Cal.4th 952, 979.) Any conflicts in the evidence are resolved in favor of the trial court's order. (People v. Limon (1993) 17 Cal.App.4th 524, 529.) When the evidence is uncontradicted, we exercise our independent judgment to determine whether, on the facts found, the search was reasonable under the Fourth Amendment. (People v. Tully, supra, 54 Cal.4th at p. 979.) In doing so, we apply federal constitutional standards. (People v. Macabeo (2016) 1 Cal.5th 1206, 1212.) Although the People must establish the reasonableness of a warrantless search in the trial court, the appellant bears the burden of demonstrating error on appeal. (People v. Jenkins (2000) 22 Cal.4th 900, 943; People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
The Fourth Amendment to the United States Constitution protects an individual's right to be secure in his or her person against unreasonable searches and seizures. (U. S. Const., 4th Amend.; Terry v. Ohio (1968) 392 U.S. 1, 8-9 [20 L.Ed.2d 889, 898-899].) The central inquiry under the Fourth Amendment is the reasonableness under the circumstances of the particular governmental invasion of a defendant's personal security. (Id. at p. 19.) " 'In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.' [Citation.]" (People v. Macabeo, supra, 1 Cal.5th at p. 1213.) A search incident to a lawful arrest is one exception to the warrant requirement. (Arizona v. Gant (2009) 556 U.S. 332, 338 [173 L.Ed.2d 485, 493].) A warrantless arrest by a police officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed. (People v. Thompson (2006) 38 Cal.4th 811, 817.) " 'Probable cause exists when the facts known to the arresting officer would persuade someone of "reasonable caution" that the person to be arrested has committed a crime.' [Citation.]" (Id. at p. 818; People v. Price (1991) 1 Cal.4th 324, 410.) This is an objective standard. (People v. Alvarez (2016) 246 Cal.App.4th 989, 1002.) Facts need not rise to the level of certainty to satisfy the probable cause requirement. (People v. Thompson, supra, 38 Cal.4th at p. 820.)
Here, the facts known to Officer Chipp, which we have already recounted, would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that defendant had committed a crime. A warrantless search of defendant's car incident to his lawful arrest was justified because it was reasonable to believe evidence relevant to a crime might be found in the Mustang. (Arizona v. Gant, supra, 556 U.S. at pp. 343-344.)
Nevertheless, defendant contends that sections 836 and 837 did not authorize his arrest. Section 836 permits a peace officer to arrest a person without a warrant if the officer has probable cause to believe the person to be arrested has committed a public offense in the officer's presence. (§ 836, subd. (a)(1).) Section 837 provides that a private person may arrest another for a public offense committed or attempted in his presence. As defendant acknowledges, however, whether Officer Chipp complied with sections 836 or 837 does not affect our determination of the validity of the challenged search under the Fourth Amendment. (Virginia v. Moore (2008) 553 U.S. 164, 178 [170 L.Ed.2d 559, 571]; People v. McKay (2002) 27 Cal.4th 601, 605, 608-611, 618.) Under Proposition 8 (Cal. Const., art I, § 28), a court cannot exclude evidence at trial as a remedy for an unreasonable search unless that remedy is required by the federal Constitution. (People v. McKay, supra, at p. 608.) The search here was valid under the Fourth Amendment.
III
Defendant further argues controlling law prohibits reliance on facts beyond the least adjudicated elements of his prior conviction to establish that the prior conviction qualifies as a strike in California.
A
Defendant had been charged in Texas with aggravated robbery. It was alleged that while committing theft of a victim's property with the intent to obtain and maintain control of the property, defendant intentionally and knowingly threatened and placed the victim in fear of imminent bodily injury, and defendant used and exhibited a firearm. The prosecution reduced the charge to aggravated assault. (Tex. Pen. Code, § 22.02, subd. (a).) Defendant waived his rights to a jury trial, to confront witnesses against him, and against self-incrimination, admitted the acts alleged in the indictment, and pleaded guilty to felony aggravated assault.
In this case, the People argued in the trial court that defendant's prior conviction for aggravated assault was a serious felony under section 1192.7, subdivision (c)(23), because the Texas record of conviction proved beyond a reasonable doubt that defendant personally used a deadly weapon during the commission of a felony. Defendant countered that the elements of assault under California law differ from those under Texas law. He claimed that because there was no indication whether the gun used in the Texas offense was loaded, the element of present ability to commit a violent injury under the California assault statute cannot be established. He also argued nothing in the record of conviction supports the conclusion that he personally used a deadly weapon in the commission of the Texas offense.
The trial court looked at the Texas record of conviction, in particular the indictment, defendant's waiver of constitutional rights, his agreement to stipulate, his judicial confession, and the plea admonishments, to determine that the Texas prior conviction was a strike.
B
California's "Three Strikes" law increases a sentence when the defendant has been convicted of prior serious or violent felonies or strikes. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) A qualifying strike includes "[a] prior conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison . . . if the prior conviction in the other jurisdiction is for an offense that includes all of the elements of a . . . serious felony as defined in subdivision (c) of Section 1192.7." (§§ 667, subd. (d)(2), 1170.12, subd. (b)(2).) An out-of-state prior conviction may also be used to impose a five-year sentence enhancement for a prior conviction that is a serious felony. (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c).)
The California Supreme Court and the United States Supreme Court have discussed the permissible inquiry into prior convictions for the purpose of increasing a current sentence. As the United States Supreme Court held in Descamps v. United States (2013) 570 U.S. ___ (Descamps), when a sentencing court makes a finding regarding a qualifying offense that would increase the penalty for a crime beyond the prescribed statutory maximum, the Sixth Amendment is implicated if the finding goes beyond merely identifying the prior conviction. (Id. at p. ___ .) A sentencing court may compare the elements of the statute under which the defendant was previously convicted with the elements of the comparable in-state offense. (Id. at p. ___ .) If the elements of the out-of-state offense are the same or narrower than the comparable in-state offense, the sentencing court may properly determine the out-of-state offense is sufficient for purposes of the sentence enhancement. (Ibid.) But the sentencing court may also consider additional evidence from the court record if the prior conviction was for violating a "divisible statute." (Ibid.) A divisible statute "sets out one or more elements of the offense in the alternative—for example, stating that burglary involves entry into a building or an automobile. If one alternative (say, a building) matches an element in the generic offense, but the other (say, an automobile) does not," sentencing courts may "consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant's prior conviction." (Ibid., italics omitted.) The court can then compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the comparable crime. (Ibid.) The court in Descamps disapproved the use of court records, such as the plea colloquy, to determine whether the prior conviction was based on facts that satisfied the elements of the comparable offense. (Id. at pp. ___ [186 L.Ed.2d at pp. 450-451, 457].)
The California Supreme Court relied on Descamps in deciding Gallardo, supra, 4 Cal.5th 120. The defendant in Gallardo had a prior conviction for assault with a deadly weapon or with force likely to produce great bodily injury. (Id. at p. 125.) If the defendant committed assault with a deadly weapon, the prior conviction was a strike; if she committed assault by any means of force likely to produce great bodily injury, the prior conviction was not a strike. (Ibid.) The trial court examined the preliminary hearing transcript for the prior conviction to determine which crime the defendant was convicted of and, thus, whether the defendant's prior conviction qualified as a serious felony. (Id. at p. 126.)
Disapproving its earlier holding in People v. McGee (2006) 38 Cal.4th 682, the California Supreme Court held: "[A] court considering whether to impose an increased sentence based on a prior qualifying conviction may not determine the 'nature or basis' of the prior conviction based on its independent conclusions about what facts or conduct 'realistically' supported the conviction. [Citation.] That inquiry invades the jury's province by permitting the court to make disputed findings about 'what a trial showed, or a plea proceeding revealed, about the defendant's underlying conduct.' [Citation.] The court's role is, rather, limited to identifying those facts that were established by virtue of the conviction itself—that is, facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as the factual basis for a guilty plea." (Gallardo, supra, 4 Cal.5th at pp. 124-125, 136.) The trial court violated the defendant's Sixth Amendment right to a jury trial by engaging in a form of factfinding about the nature or basis of the defendant's assault guilty plea. (Id. at pp. 124-125, 136-137.)
Texas Penal Code section 22.01 and California section 240 define assault differently. In Texas, a person commits an assault by (1) intentionally, knowingly or recklessly causing bodily injury to another, (2) intentionally or knowingly threatening another with imminent bodily injury, or (3) intentionally or knowingly causing physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. (Tex. Pen. Code, § 22.01, subd. (a).) In California, assault is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) The California statute is different because it requires proof of an "attempt" to inflict "violent injury" along with a "present ability" to commit the injury. (§ 240.) Thus, in California, pointing an unloaded gun at another person with no effort or threat to use it as a bludgeon is not an assault with a deadly weapon because there is no present ability to commit a violent injury on the person. (People v. Sylva (1904) 143 Cal. 62, 63-64; People v. Glover (1985) 171 Cal.App.3d 496, 504, fn. 6; People v. Orr (1974) 43 Cal.App.3d 666, 672.) But in Texas, proof that a firearm is loaded or actually capable of causing death or serious bodily injury is not required. (Tidwell v. State (Tex. App. 2006) 187 S.W.3d 771, 775-776.) Additionally, the Texas aggravated assault statute does not require personal use of a deadly weapon, whereas personal use of a deadly weapon is required for a serious felony under section 1192.7, subdivision (c)(23), the statute the People cited in the trial court. (§ 1192.7, subd. (c)(8), (23); Tex. Pen. Code, § 22.02, subd. (a)(2); Sosa v. State (Tex. App. 2005) 177 S.W.3d 227, 231.)
It appears that after examining the record of the prior Texas conviction, the trial court made its own finding that defendant personally used a firearm and committed an assault within the meaning of section 240 (in particular, that defendant had present ability to commit a violent injury upon the victim) during the 1998 Texas crime. The trial court's approach does not comport with Descamps and Gallardo because the trial court did not limit its role to identifying those facts defendant necessarily admitted as the factual basis for his plea of guilty to the crime of aggravated assault. (Gallardo, supra, 4 Cal.5th at pp. 136, 138.) We will reverse the trial court's strike determination and remand the matter to permit the trial court to conduct a new hearing on the prior Texas conviction allegation consistent with Gallardo. (Id. at pp. 137-138.)
The Attorney General further argues defendant's Texas conviction also constitutes an attempted robbery, assault with intent to commit robbery, robbery, and a crime that qualifies for a section 12022.53 firearm use enhancement under California law. We do not consider the claims because they were made in a perfunctory manner without supporting argument. (People v. Jones (1998) 17 Cal.4th 279, 304.)
DISPOSITION
The trial court's determination that the Texas prior conviction for aggravated assault constitutes a California strike is reversed and the matter is remanded for further proceedings consistent with People v. Gallardo, supra, 4 Cal.5th 120. The judgment is otherwise affirmed.
MAURO, J. We concur: BUTZ, Acting P. J. NICHOLSON, J.
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------