Opinion
C080982
07-31-2017
THE PEOPLE, Plaintiff and Respondent, v. BRYAN KEITH SILVA, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF153693)
Defendant Bryan Keith Silva appeals the trial court's enhancement of his sentence pursuant to Penal Code section 667.5 for prior California and Texas convictions, respectively. Defendant contends the enhancements were unauthorized because (1) the prior Texas conviction did not qualify as a felony prison prior under section 667.5, subdivision (f), and (2) the prior California conviction had already been reduced to a misdemeanor for all purposes pursuant to Proposition 47 (as approved by voters Gen. Elec., Nov. 4, 2014, eff. Nov. 5, 2014), the Safe Neighborhoods and Schools Act (the Act), and did not qualify as a felony conviction under section 667.5, subdivision (b). Defendant requests that the true finding on the Texas prior conviction be stricken, and the true finding on the California prior be reversed.
Undesignated statutory references are to the Penal Code. --------
The People concede the matter should be remanded for retrial on the prior Texas conviction enhancement, but argue defendant's request to reverse the true finding as to his California prison prior is moot.
We reverse the trial court's determination the Texas prior conviction qualified as a California conviction, as well as the enhanced sentence imposed pursuant to section 667.5, subdivisions (b) and (f), as a result of that determination, and remand the matter for retrial on the prior Texas conviction. We also reverse the trial court's true finding as to the alleged prior California felony conviction. In all other respects, we affirm the judgment.
BACKGROUND
We dispense with a recitation of the facts, as they are unnecessary to our resolution of this appeal. Relevant facts will be discussed where necessary in discussion of the issues.
Defendant was charged by information with possession for sale of methamphetamine. (Health & Saf. Code, § 11378.) The information alleged defendant had sustained prior felony convictions in Texas (2001) and California (2011) for which he served prior prison terms. (§ 667.5, subd. (b).)
Defendant was tried by a jury and convicted as charged. In a bifurcated proceeding, the court took judicial notice that the prior California conviction had previously been reduced to a misdemeanor pursuant to section 1170.18 (Proposition 47) and found both enhancement allegations true.
At sentencing, the trial court granted defendant's request to strike the California prior prison enhancement and sentenced defendant to serve the middle term of two years, plus a consecutive one-year term for the Texas prison prior, for an aggregate term of three years in county jail. The court ordered that defendant serve a split sentence, with 548 days in local custody and 547 days on mandatory supervision, and awarded defendant 281 presentence custody credits (141 actual days plus 140 days of conduct credit).
Defendant filed a timely notice of appeal.
DISCUSSION
I
Section 667.5 Enhancement for Texas Prison Prior
Defendant contends the Texas prison prior enhancement was unauthorized because the prior Texas robbery conviction did not include all the elements of robbery in California and therefore did not qualify as a felony prison prior under section 667.5, subdivision (f). Defendant requests that we reverse the trial court's true finding and strike the enhancement.
"Section 667.5, subdivision (f) provides: 'A prior conviction of a felony shall include a conviction in another jurisdiction for an offense which, if committed in California, is punishable by imprisonment in the state prison if the defendant served one year or more in prison for the offense in the other jurisdiction. A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense which includes all of the elements of the particular felony as defined under California law if the defendant served one year or more in prison for the offense in the other jurisdiction.' (Italics added.) [¶] The court may look to the entire record to determine the substance of a prior foreign conviction, but when 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. [Citation.]" (People v. Franz (2001) 88 Cal.App.4th 1426, 1450-1451; accord, People v. Rodriguez (1998) 17 Cal.4th 253, 261-262; People v. Myers (1993) 5 Cal.4th 1193, 1201 (Myers).)
The record that may be examined includes "a change of plea form executed by the defendant in the previous conviction [citation], the charging documents and no contest plea reflected in a minute order [citation], a complaint and [In re Tahl (1969) 1 Cal.3d 122] forms admissions [citation], a reporter's transcript of the defendant's guilty plea together with the information [citation], a probation report [citation], and a preliminary hearing transcript [citation]." (People v. Henley (1999) 72 Cal.App.4th 555, 560.) The record also includes appellate opinions affirming the conviction. (People v. Woodell (1998) 17 Cal.4th 448, 455.)
The court may consider "evidence found within the entire record of the foreign conviction" only to the extent it is "not precluded by the rules of evidence or other statutory limitation." (Myers, supra, 5 Cal.4th at p. 1201.) "A document is admissible to prove a prior conviction only if the facts asserted are admissible under the rules of evidence, including hearsay rules. [Citations, fn. omitted.] Thus, the courts have recognized that a defendant's admissions in a court document are admissible because the defendant's statements fall within a hearsay exception." (People v. Lewis (1996) 44 Cal.App.4th 845, 852-853 (Lewis).)
The indictment may be used to establish the facts of the underlying criminal conduct if the defendant pleads guilty to the charges in the indictment. (People v. Hayes (1992) 6 Cal.App.4th 616, 624.) The indictment, however, may not be sufficient. In Lewis, the appellate court examined the charging documents for defendant's prior conviction and concluded these documents did not establish the requisite factual elements of the crime of committing or aiding and abetting an assault within the meaning of section 1192.7, subdivision (c)(12) or (c)(13). (Lewis, supra, 44 Cal.App.4th at pp. 854- 855.) The court explained: "The charging document alleged that [the defendants] each 'with force and arms . . . intentionally depart[ed], under circumstances wherein human life was endangered, from the lawful custody of a deputy sheriff . . . .' [The defendant] pled guilty to this charge. While we are required to assume the asserted facts were therefore true, the allegations did not assert that [the defendant] either attacked the guard or assisted an attack on the guard. Indeed, there is no allegation that an assault of any kind occurred. From [the defendant's] guilty plea, we know only that [the defendant] admitted he attempted to depart 'under circumstances wherein human life was endangered . . . .' [The defendant's] plea is therefore insufficient to establish the prior offense constituted an assault within the meaning of section 1192.7(c)(12) or (13)." (Ibid.)
An indictment that does not "unambiguously incorporate any specific elemental fact enunciated in the information and indictment," cannot be used to prove the facts of the underlying crime. (People v. Reynolds (1989) 211 Cal.App.3d 382, 390.) In Reynolds, the judgment of conviction stated it was for "an 'included offense of the crime charged in the' information or indictment." (Ibid.) The appellate court concluded this was insufficient to establish the facts of the crime were those contained in the indictment. (Ibid.)
Here, the only evidence from which the trial court could have determined the facts of the prior Texas conviction included the following: (1) the 2001 Texas indictment for robbery stating defendant did, "while in the course of committing theft and with the intent to obtain and maintain control of property, intentionally and knowingly threaten and place [the victim] in fear of imminent bodily injury and death"; (2) a judgment on plea of guilty to second degree robbery pursuant to Texas Penal Code section 29.02; (3) a record of defendant's criminal actions reflecting imposition of sentence on defendant's guilty plea to second degree robbery; and (4) defendant's electronically generated criminal history record, including his 2001 conviction for second degree robbery.
As the People properly concede, none of the documents offered by the prosecution is a reliable source of information as to the underlying facts of the second degree robbery charge of which defendant was convicted in Texas.
When the record does not disclose the facts of the offense actually committed, the court will presume the prior conviction "rested only on the least statutory elements necessary for a conviction." (Myers, supra, 5 Cal.4th at p. 1200; accord People v. Guerrero (1988) 44 Cal.3d 343, 355.) Thus, the comparison is between the least offense punishable under the statute and the corresponding California offense as defined by the California Penal Code.
Second degree robbery is defined by section 29.02 of the Texas Penal Code that provides a person commits the offense "if, in the course of committing theft as defined in Chapter 31 and with intent to obtain or maintain control of the property, he: [¶] (1) intentionally, knowingly, or recklessly causes bodily injury to another; or [¶] (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death." (Tex. Penal Code Ann. § 29.02, subds. (a) & (b).)
Texas Penal Code section 29.01, subdivision (1), defines "in the course of committing theft" to mean "conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft." Subdivision (2) of that section defines "property" as, "(A) tangible or intangible personal property including anything severed from land; or [¶] (B) a document, including money, that represents or embodies anything of value."
California's Penal Code defines robbery as "the felonious taking of personal property in the possession of another, from his [or her] person or immediate presence, and against his [or her] will, accomplished by means of force or fear." (§ 211.)
"Under the applicable Texas law, the offense of robbery did not require either asportation or the taking of property from the person or his or her immediate presence; both of these elements are necessary for robbery under California law." (People v. Rodriguez (2004) 122 Cal.App.4th 121, 131.) Here, there was no evidence defendant's Texas robbery involved either asportation or taking property from the person or his or her immediate presence. Thus, as the People properly concede, the trial court's finding the Texas conviction satisfied all of the elements of robbery under California law was not supported by substantial evidence.
Contrary to defendant's claim the trial court's true finding must be reversed and the enhancement stricken, the proper remedy is to reverse and remand for a retrial as to whether defendant's Texas robbery conviction was a robbery under California law. (People v. Scott (2000) 85 Cal.App.4th 905, 915 [when prior conviction allegation reversed on appeal due to insufficiency of evidence, proper procedure is remand for retrial on the allegation].) Accordingly, we reverse as to the sentence enhancement for the Texas prison prior imposed pursuant to section 667.5, subdivisions (b) and (f), and remand for further proceedings including the opportunity for the prosecution to present additional evidence to prove the prior Texas robbery conviction was for a crime that contained all the elements of robbery under California law. (People v. Rodriguez, supra, 122 Cal.App.4th at pp. 137-138.)
II
Section 667.5 Enhancement for California Prison Prior
Defendant contends the trial court erred in finding his California prison prior allegation true because the offense had previously been reduced to a misdemeanor "for all purposes" pursuant to Proposition 47 (§ 1170.18, subd. (k)) and therefore did not qualify as a prior felony conviction for purposes of section 667.5, subdivision (b).
The People argue the claim is moot in light of the fact the trial court took judicial notice of the Proposition 47 reduction and found defendant sustained a prior prison term within the meaning of section 667.5, subdivision (b), but struck the prior California conviction pursuant to section 1385. Hence, defendant suffered no prejudicial consequence that could be ameliorated by a successful appeal.
Defendant responds that the issue involves a matter of continuing public interest and is likely to recur, and urges us to resolve the issue. While this issue will likely recur, we note the issue has been resolved by this court in People v. Kindall (2016) 6 Cal.App.5th 1199 (Kindall). However, we shall address the appropriate remedy in this case.
A.
Additional Background
The information alleged, as a sentencing enhancement pursuant to section 667.5, subdivision (b), defendant sustained a prior 2011 felony conviction in California for violating Health and Safety Code section 11377.
On October 30, 2015, during a bifurcated trial on the alleged prior, the prosecution offered evidence of defendant's 2011 Yolo County felony conviction for possession of a controlled substance. (Health & Saf. Code, § 11377.) At defendant's request, the court took judicial notice of the fact, on December 2, 2014, the 2011 felony conviction had been reduced to a misdemeanor pursuant to Proposition 47. Defense counsel argued the reduction prohibited the prior conviction from qualifying as a prior prison term for purposes of section 667.5, subdivision (b). After taking the matter under submission, and over defendant's objection, the trial court found the prior prison allegation true.
At sentencing, the court exercised its discretion to strike the prior California conviction pursuant to section 1385.
B.
Analysis
Proposition 47 in part provides that persons who have completed felony sentences for certain offenses may apply to have their convictions "designated as misdemeanors." (§ 1170.18, subd. (f).) In such cases, the convictions "shall be considered [misdemeanors] for all purposes." (§ 1170.18, subd. (k).)
In Kindall, this court held, where a felony underlying a prior prison term has been redesignated as a misdemeanor "for all purposes" under Proposition 47 before the prior was adjudicated, a defendant cannot be subject to additional punishment for that prior prison term pursuant to section 667.5, subdivision (b). (Kindall, supra, 6 Cal.App.5th at p. 1205.) There, this court modified the judgment to strike prior prison terms erroneously imposed, holding once a felony prior is reduced to a misdemeanor, it ceases "to exist as [a] felon[y] for all purposes moving forward." (Ibid.) Under that circumstance, the People can no longer prove defendant was previously convicted of that felony because "the now-reduced conviction[] at issue had ceased to exist as [a] felon[y]; in [its] place [was a] previous misdemeanor conviction[], for all purposes. These purposes include the adjudication of charged enhancements." (Ibid.)
Here, the trial court found the California prison prior allegation to be true and then exercised its discretion under section 1385 to strike the allegation. However, at the time the trial court was called upon to find the elements of the prior conviction enhancement at the bifurcated court trial on the prison priors, the California prior felony conviction had already been reduced to a misdemeanor. Therefore, the court could no longer find defendant had sustained the prior California felony conviction as alleged because the reduced felony was a misdemeanor for all purposes going forward. Therefore, we conclude the trial court erred in finding his California prison prior allegation true.
While the trial court's subsequent act of striking the California prison prior prevented the imposition of a sentencing enhancement, we conclude the appropriate remedy is to reverse the trial court's finding defendant sustained the prior California felony conviction.
DISPOSITION
As to the prior Texas conviction, we reverse the trial court's determination defendant's prior Texas conviction qualified as a California conviction and the related sentence enhancement imposed pursuant to Penal Code section 667.5, subdivisions (b) and (f). The matter is remanded for retrial on the prior Texas conviction. As to the prior California conviction, we reverse the trial court's true finding as to the alleged prior California felony conviction. In all other respects, the judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
NICHOLSON, Acting P. J. /s/_________
MAURO, J.