Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Robert George Spitzer, Judge. Affirmed in part; reversed in part with directions.
Lauren E. Eskenazi, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr., Marvin E. Mizell and Michael Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King, J.
A jury convicted defendant of cohabitant abuse with a prior (count 1). (Pen. Code, § 273.5, subd. (e)(1).) The court thereafter found true allegations that defendant had sustained a prior strike conviction for purposes of two-strike sentencing and had suffered a prior conviction for cohabitant abuse, for which he served a prior prison term and failed to remain free for five years. (§§ 667, subds. (c), (e)(1), 667.5, subd. (b).) The court made these findings based solely on defendant’s testimony at trial on the substantive count. On appeal, defendant contends there is insufficient evidence to support the court’s true findings on the enhancements. First, we conclude that a trial court may properly find that defendant has suffered a prior serious felony conviction and a prior prison enhancement based on defendant’s sworn testimony in the present criminal proceeding. Next, we find that substantial evidence supports the court’s determination that defendant sustained a prior serious or violent felony conviction for purposes of two-strike sentencing. Lastly, we believe there is insufficient evidence to support a true finding on the section 667.5 subdivision (b) enhancement; we therefore reverse this finding. We remand to the trial court for further proceedings consistent herewith. In all other regards, we affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTS AND PROCEDURAL HISTORY
Elizabeth Mejia, defendant’s ex-wife, her daughter, and defendant had a barbecue on July 4, 2006. Defendant became drunk and aggressive. Defendant pushed Mejia in the chest, pulled her backward by her hair, and choked her. Mejia’s daughter called the police.
The People charged defendant by information with cohabitant abuse with a prior (count 1—§ 273.5, subd. (e)(1)) and two counts of assault with a deadly weapon (counts 2 & 3—§ 245, subd. (a)(1)). The People additionally alleged defendant had suffered one prior prison term within the meaning of section 667.5, subdivision (b) and one prior strike conviction. (§ 667, subds. (c), (e)(1).) The prior prison term was alleged to derive from defendant’s conviction of spousal abuse on March 25, 2004, and the prior strike conviction from defendant’s conviction of preventing a victim from reporting a crime on November 19, 2003.
Prior to trial on the substantive counts, the court granted defendant’s motion to bifurcate trial on the enhancements. After trial on the substantive counts commenced, but before testifying, defendant waived his right to a jury trial on the prior conviction allegations. Defendant took the stand in his own defense. He admitted that he had been convicted of two felony crimes. The first conviction occurred on November 19, 2003, when defendant pled guilty to spousal abuse. The second conviction, occurring on the same date, was for preventing a victim from reporting a crime. Defendant admitted that he was currently on parole. He admitted that he went to prison for one of his prior convictions.
At the preliminary hearing, the People introduced into evidence a copy of defendant’s rap sheet. The magistrate noted that the rap sheet reflected that defendant had incurred a previous conviction for spousal abuse on March 25, 2004. The probation officer’s report shows that defendant was convicted of both felony cohabitant abuse and felony preventing a victim from reporting a crime on November 19, 2003, for which he received probation. On March 25, 2004, defendant was again convicted of felony cohabitant abuse and sentenced to two years’ imprisonment.
The jury convicted defendant on count 1, found him not guilty on count 2, and hung on count 3. The court thereafter granted defendant’s motion for mistrial on count 3. The court then referred the matter out for the preparation of a probation officer’s report to aid it in sentencing.
At this time, and relative to the enhancements, the following colloquy occurred:
“[DEFENSE COUNSEL]: We need the priors. When do you want to do that?
“THE COURT: With respect to the priors, I can do that on Friday as well.
“[DEFENSE COUNSEL]: That’s fine.
“[THE PEOPLE]: This coming Friday, your Honor?
“THE COURT: This coming Friday, if that’s agreeable with you, [defendant]. You have—I think in his testimony [he] admitted the prior conviction in 2004 associated with Count 1. I’m not sure that I heard or have received any specific information on the strike prior, the [section] 136.1[, subdivision (b)], and I wasn’t
“[DEFENSE COUNSEL]: He testified to that too, your Honor.
“[THE PEOPLE]: He admitted that in testimony as well.
“THE COURT: Okay. And I think he also testified that he went to prison and was out on parole.
“[THE PEOPLE]: Yes, he did.
“[DEFENSE COUNSEL]: That’s correct.
“THE COURT: So I can find that, at this point in time actually, that beyond a reasonable doubt that the priors alleged under Count 1 pursuant to Penal Code Section 273.5, subdivision (e), is true. [¶] The prior offense alleged pursuant to [section] 667.5, subdivision (b), concerning his conviction on March 25th, 2004, and his subsequent prison commitment for a violation of Penal Code Section 273.5, subdivision (a), is true. [¶] And with respect to the special prior offense, the Court will, pursuant to Penal Code Section[s] 667, subdivision[s] (c) and (e), and 1170.12, regarding his conviction for a serious offense under Penal Code Section 136.1, subdivision (b), subsection (1), is true. So we don’t have to deal with the priors.”
Defendant was concurrently sentenced to prison for two years as a consequence of his violation of probation in the previous cases. At sentencing, the court noted that: “[Defendant], based on your conviction and the admissions of the priors, the Court has to send you to state prison.” In electing the appropriate sentence, the court went through defendant’s criminal record, presumably as reflected in the probation officer’s report: “In November of 2003, he was convicted in case [N]o. RIF-112905 for a violation of [section] 273.5, and was given a sentence in 2004, two years in state prison. [¶] There was a charge of witness intimidation in another case, [No.] RIF-108410, and another charge of violation of [section] 273.5 in [case No.] RIF-113974, for which he was given two years in state prison. All of those terms were to run concurrent.” The court imposed an aggregate nine-year prison sentence composed of the midterm of four years on count 1, doubled pursuant to the strike prior, and a consecutive year on the prior prison term.
Box 4 on the abstract of judgment has been incorrectly left unchecked; thus neglecting to reflect that defendant’s sentence has been augmented due to the true finding on the prior strike allegation. We shall order the trial court to correct the abstract of judgment and send a certified copy to the Department of Corrections and Rehabilitation.
II. DISCUSSION
A. Based on Defendant’s Sworn Testimony in the Present Criminal Proceeding, a Trial Court May Properly Find That Defendant Has Suffered a Prior Serious Felony Conviction and a Prior Prison Enhancement
In his opening brief, defendant assures us that defendant’s testimonial admissions at the trial on the substantive count were properly considered by the court in its true finding on the prior conviction allegations. However, in his reply brief, defendant reverses himself, contending that the trial court was prohibited from considering the admissions defendant made while testifying in the current case. Relying primarily on People v. Trujillo (2006) 40 Cal.4th 165 (Trujillo) and People v. Thoma (2007) 150 Cal.App.4th 1096, defendant maintains the court was limited to examining the certified documents typically presented in such cases. We disagree.
Arguably, defendant forfeited this latter contention by failing to raise it in his opening brief or waived it by, in fact, conceding the issue. (People v. Mitchell (1995) 36 Cal.App.4th 672, 674, fn. 1.)
Under our facts, the trial court properly relied on the sworn testimony of defendant in the present proceeding, to determine that he was previously convicted of a serious felony. And while we also find that the same testimony was appropriately relied upon by the court relative to the prior prison enhancement, we conclude that the evidence thereon was insufficient to support a true finding.
“[U]nlike a trial on a criminal charge, trial on a prior conviction is ‘simple and straightforward,’ often involving only a presentation by the prosecution ‘of a certified copy of the prior conviction along with the defendant’s photograph [or] fingerprints’ and no defense at all.” (People v. Mosby (2004) 33 Cal.4th 353, 364.)
Relative to three-strike sentencing: “‘[T]he relevant inquiry in deciding whether a particular prior conviction qualifies as a serious felony for California sentencing purposes is limited to an examination of the record of the prior criminal proceeding to determine the nature or basis of the crime of which the defendant was convicted.’ [Citation.]” (Trujillo, supra, 40 Cal.4th at p. 179.) “A statement by the defendant recounted in a postconviction probation officer’s report does not necessarily reflect the nature of the crime of which the defendant was convicted.” (Ibid.) While we fully agree with Trujillo and the above statements of law, our facts are readily distinguished.
In Trujillo, defendant in the prior proceeding pled to inflicting corporal injury in violation of section 273.5, subdivision (a). The crime to which he pled was not a serious or violent felony. In a postplea probation interview, defendant admitted that he used a knife, a fact that would elevate the underlying crime to a serious or violent felony. On appeal, the Supreme Court affirmed the trial court’s refusal to consider the statement by defendant that he had used a knife. The court concluded that said fact went beyond the record of conviction itself—that is, it was error to consider facts outside of the record of conviction to further explain or amplify upon the nature of the underlying conduct. As stated, “a defendant’s statements, made after a defendant’s plea of guilty has been accepted, . . . are not part of the record of the prior conviction, because such statements do not ‘reflect[] the facts of the offense for which the defendant was convicted.’ [Citation.]” (Trujillo, supra, 40 Cal.4th at p. 179, italics added.)
Defendant additionally relies on People v. Thoma, supra, 150 Cal.App.4th 1096. We do not believe that case is on point. There, defendant in the prior proceeding pled guilty to a violation of Vehicle Code section 23153, subdivision (a), not itself a serious felony for purposes of three-strike sentencing. (While intoxicated, he had been in an accident in which the victim received serious injuries.) At the trial of the prior conviction, the court relied on a multiple hearsay statement taken from the transcript of the preliminary hearing wherein the police officer testified that a nurse told him that the victim of the accident had received multiple injuries. Relying on this statement, the trial court found that the defendant had personally inflicted great bodily injury, thus elevating the violation to a serious or violent felony for purposes of three-strike sentencing. In reversing the trial court’s true finding, the court held that the testimony upon which the court relied was hearsay and that defendant did not admit the facts testified to at the preliminary hearing when he pled guilty and stipulated that the preliminary hearing transcript could serve as the factual basis for the plea.
As opposed to the facts in Trujillo, the sworn testimony of defendant in the present case does indeed reflect the facts of the offense for which he was convicted. While the present testimony was not part of the prior proceeding, it nonetheless precisely reflects his prior conviction. Here, in order to find that defendant committed a serious felony it was not necessary for the court to hear or find any additional fact so as to explain or amplify upon the conduct underlying the prior conviction. Defendant testified to the essential fact of the conviction of a serious felony.
At issue here is simply the manner in which the prosecutor chose to prove the facts of the offense for which the defendant was convicted (i.e., sworn testimony of the defendant, as opposed to a section 969b package); we are not concerned with the consideration of additional facts for purposes of determining “the facts of the offense for which the defendant was convicted.” (Trujillo, supra, 40 Cal.4th at p. 179.)
Where a defendant chooses to testify, such testimony to the extent it reflects and is confined to the facts of the offense for which the defendant was convicted, can be properly used to support a finding that the prior conviction was for a serious or violent felony. Indeed, here, where defendant elected to testify against his counsel’s recommendation and after a warning from the court regarding the repercussions of doing so, and that testimony is being used solely to prove a finding which would enhance defendant’s sentence for recidivism, consideration of said evidence is proper. (Trujillo, supra, 40 Cal.4th at p. 179.)
Moreover, Trujillo referenced, with approval, its own decision in People v. Reed (1996) 13 Cal.4th 217, in which it determined that reliance on a reporter’s transcript of a preliminary hearing is a part of the record of a prior conviction and may be relied upon in determining the nature of defendant’s prior conviction for enhancement purposes. (Trujillo, supra, 40 Cal.4th at p. 177.) This was based, at least in part, on the fact that certain procedural protections are afforded the defendant during a preliminary hearing which tend to ensure the reliability of such evidence. (Ibid.) Likewise, we think that defendant’s admissions during his testimony at trial here were clothed in sufficient procedural protections to ensure the reliability of his statements. Here, prior to taking the stand, defendant waived his right to a jury on the enhancements. The court asked of defendant prior to his testimony, “And you understand that in so testifying, the People may ask you questions about your prior felony convictions or prior acts of violence associated with the victim in this case, Elizabeth [Mejia]. Do you understand that?” Defendant replied in the affirmative. Defense counsel indicated he had recommended against defendant taking the stand, but defendant insisted on doing so. Defendant thereafter took the stand and testified regarding his prior convictions, status on parole, and prior prison sentence on direct examination while represented by counsel. Thus, defendant’s testimony here was enveloped by procedural protections which ensured its reliability.
Finally, in People v. Elmore (1990) 225 Cal.App.3d 953, the court noted not only that a trial court could properly consider the testimony of the defendant for purposes of establishing a prison enhancement, but also that the testimony considered could be proffered at the trial on the underlying substantive offenses. (Id. at p. 957.) “To preclude the court from considering evidence properly before it during another part of the trial would be unnecessarily rigid and would hamper, rather than further, the interests of justice.” (Ibid.) This was despite the fact that the prosecution had not offered the evidence itself. (Ibid.) We recognize that Elmore considered such evidence for purposes of proving a prior prison term allegation rather than a prior strike allegation. Nevertheless, the court’s broad statement that such evidence may be used at trial on “subsequent enhancement allegations” lends itself to application to trials on prior strike convictions as well. (Ibid.) We see little reason to vary the underlying rule simply because of the nature of the prior alleged. Thus, the trial court properly considered defendant’s admissions made during his testimony when determining both whether defendant had been previously convicted of a qualifying “strike,” and whether he had served a prior prison term and had not remained free of prison custody prior to the present offense, for a period of five years.
Defendant’s citation to Shepard v. United States (2005) 544 U.S. 13 is unavailing for the proposition that the People’s reliance upon anything beyond the record of conviction in proving a prior conviction is constitutionally infirm. The plurality opinion issued an extremely narrow holding which found that inquiry under federal statutory provisions for enhancement of a defendant’s sentence for a burglary conviction on the basis of a prior conviction is limited to the record of conviction when determining whether a defendant’s plea to the prior offense necessarily admitted certain requisite elements of the offense for finding the prior conviction allegation true. In stating its holding relative to relying on the record of conviction, the court noted that the enquiry could include “some comparable judicial record of this information.” (Id. at p. 26.) Even Justice Thomas’s broader statements in his concurring opinion never specifically noted that a court could not rely upon statements made by a defendant under oath at trial on the underlying offense when considering whether to enhance a defendant’s sentence. Rather, Justice Thomas notes in the first sentence of his opinion that courts may rely on facts “admitted by the defendant.” (Id. at p. 27 (conc. opn. of Thomas, J.).)
We therefore believe that defendant’s trial testimony in the present proceeding was properly considered by the court in determining the truth of the enhancement allegations.
B. Prior Strike Conviction
Nonetheless, the question remains whether defendant’s admissions amounted to substantial evidence to support the court’s true finding on the prior strike conviction allegation. Defendant contends they do not. The People disagree. At the outset, we note that while defendant assured us in his opening brief that his admissions at trial did not convert the proceeding to the equivalent of a “plea” to the enhancements, in his reply brief he reverses his position, asserting that the court should have given him the appropriate admonishments and taken a waiver of his constitutional rights prior to allowing him to “admit” the allegations. We construe the posttrial proceedings in which the court found the enhancement allegations true as an abbreviated trial on the matter, as conceded by defendant in his opening brief and, therefore, find that no constitutional admonishments or waivers were required. Defendant’s choice to “admit” the underlying facts of the enhancement allegations in his trial testimony did not require such admonishments and waivers because it was an exercise of his constitutional right to do so and not the equivalent of a “plea” to those allegations. Moreover, defendant was represented by counsel, was advised by both counsel and the court of the dangers of testifying, and waived his right to a jury trial; hence, his rights were sufficiently protected. Thus, we proceed directly to the issue of whether substantial evidence supported the court’s findings.
We review a claim of insufficiency of the evidence relating to a true finding on a prior strike allegation for substantial evidence, i.e., “evidence which is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]” (People v. Garrett (2001) 92 Cal.App.4th 1417, 1433.)
Defendant’s testimonial admissions constituted substantial evidence for the court’s true finding on the prior strike allegation. Defendant admitted he had suffered convictions for two felonies, one of which was preventing a victim from reporting a crime, a violation of section 136.1. He testified that the conviction for preventing a victim from reporting a crime occurred on November 19, 2003, the date alleged in the information for the occurrence of the prior strike conviction. As defendant himself notes, “all felony violations of Penal Code section 136.1 are serious felonies within the meaning of Penal Code section 1192.7, subdivision (c)(37).” (People v. Neely (2004) 124 Cal.App.4th 1258, 1268.)
Nevertheless, defendant contends that he pled both to a spousal abuse and dissuading a witness on the same date. Thus, since both offenses are wobblers, and both were pled to on November 19, 2003, his testimony that he was only sentenced to prison for one of his convictions is susceptible to the inference that he was actually only convicted of one felony. (§§ 273.5, 136.1; People v. McElroy (2005) 126 Cal.App.4th 874, 880.) This is because, as wobblers, a conviction for the offense would only be considered a felony if a state prison sentence was imposed. (People v. McElroy, supra, at p. 880.) Hence, because the information alleged that the section 136.1 offense was the prior strike conviction and, indulging in defendant’s “inference,” we do not know which of defendant’s two admitted convictions was felonious, the spousal abuse conviction could be the one conviction for which a prison sentence was imposed. Thus insufficient evidence was adduced that defendant’s conviction for the section 136.1 offense was a felony. We do not believe, however, such is a rational inference of defendant’s testimony. Rather, the rational inference of defendant’s admissions is either that he was convicted of both offenses as felonies on the same date and that the court imposed one aggregate sentence for those offenses, or that the court suspended pronouncement of judgment or imposition of sentence on one of the counts. Either scenario would be consistent with defendant’s testimonial admission that he was convicted of two felonies. Considering the evidence of defendant’s testimonial admissions in a light most favorable to the judgment and presuming the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment, the evidence here was sufficient to support the court’s true finding on the prior strike conviction allegation. (People v. Jones (1995) 37 Cal.App.4th 1312, 1315.)
C. Prior Prison Term
“The prosecution has the burden of proving beyond a reasonable doubt each element of the section 667.5, subdivision (b) sentence enhancement . . . . When, as here, a defendant challenges on appeal the sufficiency of the evidence to sustain the trial court’s finding that the prosecution has proven all elements of the enhancement, we must determine whether substantial evidence supports that finding. The test on appeal is simply whether a reasonable trier of fact could have found that the prosecution sustained its burden of proving the enhancement beyond a reasonable doubt. In that regard, in conformity with the traditional rule governing appellate review, we must review the record in the light most favorable to the trial court’s finding(s). [Citation.]” (People v. Fielder (2004) 114 Cal.App.4th 1221, 1232.)
As to the section 667.5, subdivision (b) enhancement, the information alleges “that the defendant, [name], was on or about March 25, 2004, . . . convicted of the crime of SPOUSAL ABUSE, a felony . . . and thereafter served a separate term in state prison for said offense, and did not remain free of prison custody for, and did commit an offense resulting in a felony conviction during a period of five years subsequent to the conclusion of said term, within the meaning of Penal Code section 667.5, subdivision (b).” A true finding on a section 667.5 allegation “requires proof that the defendant (1) was previously convicted of a felony, (2) was imprisoned as a result of that conviction, (3) completed that term of imprisonment, and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction. [Citation.]” (People v. Elmore, supra, 225 Cal.App.3d at p. 956.) Here, the prior felony conviction alleged is one for spousal abuse occurring on March 25, 2004.
Defendant contends the People failed to prove the first two elements of the prior prison term allegation beyond a reasonable doubt. We agree. There is absolutely no evidence in the record that defendant was convicted of spousal abuse on March 25, 2004. There is further no evidence that he was imprisoned as a result of that conviction. Here, defendant solely admitted that he had been previously convicted of two felonies. According to defendant, those convictions occurred on November 19, 2003. Likewise, he admitted he had been imprisoned as a result of one of those convictions; and that he was currently on parole. Thus, there was no evidence to support the first two elements of the prior prison term enhancement as alleged in the information. Hence, the trial court’s true finding on that enhancement must be reversed.
Though in his reply brief he again changes course and asserts for the first time that the People failed to adduce sufficient evidence of the third and fourth elements as well.
DISPOSITION
The true finding as to the section 667.5, subdivision (b) enhancement is reversed. The matter is remanded to the superior court for further proceedings relative to defendant’s alleged March 25, 2004, conviction. (See People v. Barragan (2004) 32 Cal.4th 236; People v. Fielder, supra, 114 Cal.App.4th at p. 1234.) In all other respects, the judgment is affirmed.
We concur: McKinster, Acting P.J., Richli, J.