Opinion
H033047.
2-27-2009
THE PEOPLE, Plaintiff and Respondent, v. ROBERT PEREZ ORTEGA, Defendant and Appellant.
Not to be Published in Official Reports
The defendant herein, Robert Perez Ortega, pleaded no contest to spousal abuse crimes. The trial court sentenced him as a repeat offender because of a crime he committed in Texas. He contends on appeal that the court erred in so doing.
We will affirm the judgment.
BACKGROUND
I. Convictions and Sentence
Defendant pleaded no contest to inflicting corporal injury on his wife resulting in a traumatic condition with a prior conviction under Penal Code section 243, subdivision (e), within seven years (§ 273.5, subds. (a), (e)(2)) and vandalism (§ 594, subds. (a), (b)(1)), both felonies. He also pleaded no contest to violating a protective order (§ 273.6, subd. (a)), a misdemeanor. He admitted using a deadly or dangerous weapon, specifically a knife, in committing the corporal injury crime. (§ 12022, subd. (b)(1).)
All further statutory references are to the Penal Code unless otherwise indicated.
The information alleged that defendant had a prior conviction, suffered in Texas that implicated Californias "Three Strikes" law. (§§ 667, subds. (b)-(i), 1170.12.) He contested the truth of this allegation. The trial court, following a trial to the court, found the allegation true beyond a reasonable doubt. The court agreed with defendant that his Texas conviction did not constitute a strike on the face of the Texas law, but ruled that his admitted physical act and mental state in Texas established that his crime there constituted a strike under California law. It sentenced him to four years in prison under the Three Strikes law and imposed fines.
PROCEEDINGS IN THE TRIAL COURT
As noted, this appeal concerns the validity of the trial courts finding true the allegation that defendants Texas offense constituted a strike under the Three Strikes law. The germane procedural history, then, is that regarding the record of the Texas offense and the trial courts evaluation of it.
As relevant here, the record that the trial court considered included the indictment of defendant in El Paso County, Texas. The grand jurors handed up an indictment alleging that on June 2, 2000, in violation of Texas Penal Code section 22.02, defendant "did then and there intentionally and knowingly threaten Helen Alvarado with imminent bodily injury and did then and there use and exhibit a deadly weapon during the commission of said assault, to-wit: a knife, that in the manner of its use and intended use was capable of causing death and serious bodily injury[. ¶] And it is further presented that the said Defendant used and exhibited a deadly weapon, to-wit: a knife, during the commission of and immediate flight from said offense[. ¶] Against the peace and dignity of the state." (Original emphasis omitted.)
In 2000, Texas Penal Code section 22.02 defined felony aggravated assault, in pertinent part, as follows:
"(a) A person commits an offense if the person commits assault as defined in Section 22.01 of this code and the person: [¶] . . . [¶] (4) uses or exhibits a deadly weapon during the commission of the assault. [¶] . . . [¶] (c) An offense under this section is a felony of the second degree, except" under circumstances evidently not relevant here. (See Act of May 29, 1993, 73rd Leg., ch. 900, § 1.01, 1993 Tex. Sess. Law Serv. 3589, _____ (Vernon 1994).)
The current version of Texas Penal Code section 22.02, on which the trial court may have relied (it was quoted in a trial brief by defendant), is materially the same. It provides, in pertinent part:
"(a) A person commits an offense if the person commits assault as defined in § 22.01 and the person: [¶] . . . [¶] (2) uses or exhibits a deadly weapon during the commission of the assault. [¶] (b) An offense under this section is a felony of the second degree, except" under circumstances evidently not relevant here.
Texas Penal Code section 22.01 provides, and provided in 2000, in pertinent part:
"(a) A person commits an offense if the person: [¶] . . . [¶] (2) intentionally or knowingly threatens another with imminent bodily injury, including the persons spouse." (See Act of May 29, 1993, 73rd Leg., ch. 900, § 1.01, 1993 Tex. Sess. Law Serv. 3589, _____ (Vernon 1994).)
Appellant, appearing in the District Court of El Paso County, Texas, 41st Judicial District, pleaded "guilty to the charge in the indictment" after acknowledging that he had read it. He stated that "I . . . admit all of the allegations in the indictment." The "judgment on plea of guilty before the court waiver of jury trial" described defendants offense as second degree "aggravated assault with a deadly weapon [under Texas Penal Code section] 22.02" and reflected these "findings on use of deadly weapon: affirmative to wit: a steak knife." (Original emphasis omitted.)
The trial court in this state found that one distinct "basis to find the serious felony was proven beyond a reasonable doubt" was that "[t]he very words carried in the Texas indictment with the special allegation are sufficient to show a California equivalent. The defendant by his plea of guilty in Texas admitted every element in the charged indictment which was that it was an assault and that he was personally armed with a knife, and this constitutes a serious felony under California law."
DISCUSSION
I. Standard of Review " `When, as here, a defendant challenges on appeal the sufficiency of the evidence to sustain the trial courts finding that the prosecution has proven all elements of the enhancement [based on a conviction in another jurisdiction], we must determine whether substantial evidence supports that finding. The test on appeal is . . . whether a reasonable trier of fact could have found that the prosecution sustained its burden of proving the enhancement beyond a reasonable doubt. [Citation.] In making this determination, we review the record in the light most favorable to the trial courts findings. [Citation.]" (People v. Rodriguez (2004) 122 Cal.App.4th 121, 129.)
II. Legal Principles
Under the Three Strikes law a conviction in another jurisdiction qualifies as a strike if it contains all of the elements required for a crime to be deemed a serious (§ 1192.7, subd. (c)) or violent (§ 667.5, subd. (c)) felony in California. (§§ 667, subd. (d)(2), 1170.12, subd. (b)(2); cf. People v. Woodell (1998) 17 Cal.4th 448, 453 [speaking of conduct].) To determine whether the out-of-state conviction contained all of the elements of a California serious or violent felony, the trier of fact may consider the "record of the prior conviction as well as the elements of the crime." (People v. Avery (2002) 27 Cal.4th 49, 53.) In furtherance of judicial economy and accuracy of result, courts need not consider the elements test if the record test establishes equally or more clearly and with less labor that the foreign offense qualifies as a strike. "If the record does not disclose any of the facts of the offense actually committed, the court will presume the prior conviction was for the least offense punishable under the foreign law." (People v. Mumm (2002) 98 Cal.App.4th 812, 816, italics added.)
The record of conviction includes the text of a foreign jurisdictions indictment and a guilty plea based on that indictment. A number of decisions have contemplated that another jurisdictions indictment for a prior offense is part of the record of conviction that may be considered for purposes of applying Californias habitual-offender statutes, and we know of no contrary authority. (See People v. McMahan (1992) 3 Cal.App.4th 740, 745-746; People v. Towers (2007) 150 Cal.App.4th 1273, 1285 [citing McMahan and noting that the defendant in Towers did "not dispute that an indictment is part of the record of conviction for purposes of determining the substance of his Tennessee conviction"]; see also People v. Avery, supra, 27 Cal.4th at p. 52; People v. Woodell, supra, 17 Cal.4th at p. 452 (maj. opn.); id. at p. 462 (conc. & dis. opn. of Mosk, J.); People v. Mumm, supra, 98 Cal.App.4th at p. 816; People v. Zangari (2001) 89 Cal.App.4th 1436, 1448.)
III. Applying the Standard of Review and Legal Principles to the Record of This Case
The trial court was correct that defendants admission of the allegations contained in the indictment established that his Texas offense was a strike under California law.
The Texas indictment alleged that defendant used a knife to place the victim in imminent jeopardy of being wounded, and that he committed this act at least knowingly.
Texas law provides that an assault occurs, as relevant here, "if the person: [¶] . . . [¶] (2) intentionally or knowingly threatens another with imminent bodily injury." (Tex. Pen. Code, § 22.01, subd. (a).) As construed by Texass high criminal court, the physical component of "assault by threat requires the defendant to communicate a threat of imminent bodily injury" (Oliva v. State (Tex.Ct.Crim.App. 2006) 203 S.W.3d 341, 342); i.e., "there must be some evidence of a threat being made" (id. at p. 349). There is no reason to believe that the law was different in 2000, when defendant committed his Texas offense. (See id. at pp. 342, 347-348 & fn. 32.) And the mental state component is one of purpose or knowledge. (See Tex. Pen. Code, § 22.01, subd. (a).)
Under the California law of assault the required physical act is "an act that is closer to the accomplishment of injury than is required for other attempts." (People v. Chance (2008) 44 Cal.4th 1164, 1167.) That component, however, "is satisfied when `a defendant has attained the means and location to strike immediately" (id. at p. 1168), i.e., "a defendants action enabling him to inflict a present injury . . . constitutes the actus reus of assault" (id. at p. 1172). As for the required mental state, at a minimum "a defendant must `actually know[] those facts sufficient to establish that his act by its nature will probably and directly result in physical force being applied to another." (Id. at p. 1169.)
The language of the Texas indictment, read in light of the Texas assault statute, fulfills the California requirements for assault.
Defendant, acting at least knowingly and possibly intentionally, used a knife to prepare to assail the victim. Just "`laying ones hand" (People v. Chance, supra, 44 Cal.4th at p. 1172) on such an object in preparation for engaging in violence satisfies the physical act requirement for assault (ibid. ). Moreover, we may infer from the indictments allegation regarding "imminent bodily injury" that defendant had "`the means and location to strike immediately." (People v. Chance, supra, 44 Cal.4th at p. 1167.)
With regard to mental state, the language of the indictment makes plain that defendant "`[knew] . . . facts sufficient to establish that his act by its nature [would] probably and directly result in physical force being applied to another." (People v. Chance, supra, 44 Cal.4th at p. 1169.)
Thus, defendant did more than just threaten the Texas victim, as might be suggested by the Texas indictments reference to exhibiting the knife—the indictment stated that he "did then and there use and exhibit a deadly weapon during the commission of said assault, to-wit: a knife . . . ." (Italics added.)
The indictment also established that the assault was a serious felony under California law because it involved a deadly weapon (§ 1192.7, subd. (c)(31)) and thus constituted a strike under the Three Strikes law (§§ 667, subd. (d)(2), 1170.12, subd. (b)(2); People v. Woodell, supra, 17 Cal.4th at p. 453). Defendant used a knife to execute the assault. A knife is not a dangerous or deadly weapon as a matter of law, but it was so under the circumstances in which he used it in Texas. "`"`There are, first, those instrumentalities which are weapons in the strict sense of the word, and, second, those instrumentalities which are not weapons in the strict sense of the word, but which may be used as such. The instrumentalities falling in the first class, such as guns, dirks and blackjacks, which are weapons in the strict sense of the word and are "dangerous or deadly" or others in the ordinary use for which they are designed, may be said as a matter of law to be "dangerous or deadly weapons." This is true as the ordinary use for which they are designed establishes their character as such. The instrumentalities falling into the second class, such as ordinary . . . objects[that] are not weapons in the strict sense of the word and are not "dangerous or deadly" to others in the ordinary use for which they are designed, may not be said as a matter of law to be "dangerous or deadly weapons." When it appears, however, that an instrumentality other than one falling within the first class is capable of being used in a "dangerous or deadly" manner, and it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require, we believe that its character as a "dangerous or deadly weapon" may be thus established, at least for the purposes of that occasion. "[Citations.]" (People v. Henderson (1999) 76 Cal.App.4th 453, 467-468.)
Because defendants admission to the allegations presented in the Texas indictment established that he committed a strike offense under Californias Three Strikes law, we need not consider the parties views on other questions, namely whether the Texas prosecutors recitation of the facts of the Texas offense could be considered by the trial court here, or whether under the elements test the Texas offense would constitute a strike.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
Bamattre-Manoukian, Acting P. J.
McAdams, J.