Opinion
D073354
09-18-2018
THE PEOPLE, Plaintiff and Respondent, v. CLIFFORD WAYNE STRONG, Defendant and Appellant.
Matthew R. Garcia, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN354805) APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed. Matthew R. Garcia, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
I
INTRODUCTION
Clifford Wayne Strong pleaded guilty to robbery (Pen. Code, § 211). In a separate proceeding, the trial court found true allegations he had a prior serious felony conviction (§ 667, subd. (a)(1)) and a prior strike conviction (§§ 667, subd. (b)-(i), 1170.12). The court sentenced him to nine years in prison.
All further statutory references are to the Penal Code unless otherwise stated. --------
Strong appeals. His appointed appellate counsel filed a brief under People v. Wende (1979) 25 Cal.3d 436, 441-442, and Anders v. California (1967) 386 U.S. 738, 744, requesting we independently review the record for error. Strong filed a supplemental letter brief asserting the court erred in finding his prior out-of-state conviction qualified as a serious felony and a strike under California law. We conclude the court did not so err, and after independently reviewing the record as counsel requested, we identified no reasonably arguable appellate issues. We, therefore, affirm the judgment.
II
BACKGROUND
A
Strong pleaded guilty to robbery. As the factual basis for his plea, he stated he unlawfully used force to take property from another with the intent to permanently deprive the other of the property.
In exchange for Strong's guilty plea, the People moved to dismiss two other charges: use of the personal identifying information of another (§ 530.5, subd. (a)), and petty theft of retail merchandise. The court granted the motion.
B
The parties' guilty plea agreement contemplated a subsequent trial on allegations Strong had a prior serious felony conviction and a prior strike conviction. Strong waived his right to a jury trial on the allegations.
At the bench trial, the People presented evidence, without objection, of an out-of-state conviction for battery with use of a deadly weapon. The evidence included certified copies of the out-of-state court's case summary/docket entries, the information, the guilty plea agreement, the judgment of conviction, and an order for revocation of probation and amended judgment.
The information alleged Strong committed the crime of battery with use of a deadly weapon by striking the victim in the head with a rock, brick, or concrete block. The guilty plea agreement stated Strong agreed to plead guilty to battery with use of a deadly weapon as more fully alleged in the information. The guilty plea agreement also stated Strong admitted the facts supporting all the elements of the offense as set forth in the information.
The parties did not dispute the existence of the conviction or Strong's identity as the perpetrator of the offense. Rather, the parties disputed whether the out-of-state conviction qualified as a serious felony and a strike under California law. After considering the parties' arguments and authorities, the trial court determined the out-of- state conviction did so qualify and found the prior conviction allegations true beyond a reasonable doubt.
C
At the sentencing hearing, the court declined Strong's invitation to dismiss the prior strike conviction finding under section 1385. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The court sentenced him to 11 years in prison, consisting of the middle term of three years for the robbery conviction, doubled to six years for the prior strike conviction finding, plus five years for the prior serious felony conviction finding. The court awarded Strong 704 days of presentence credit, consisting of 613 days of actual custody credit and 91 days of conduct credit. The court also imposed a $300 restitution fine; a $300 parole revocation fine, which the court stayed; a $40 court security fee; a $30 critical needs fee; a $154 booking fee; and a $39 theft fine.
The court subsequently recalled Strong's sentence and resentenced him to nine years in prison, consisting of the lower term of two years, doubled to four years for the prior strike conviction finding, plus five years for the prior serious felony conviction finding. The court also imposed a $2,700 restitution fine.
Approximately seven months later, the court granted appointed appellate counsel's request to correct Strong's presentence credits and restitution fine. The court awarded Strong 711 days of presentence credit, consisting of 619 days of actual custody credit and 92 days of conduct credit. The court also reduced Strong's restitution fine to $300.
III
DISCUSSION
A
Appointed appellate counsel filed a brief which presented no claims of error. Instead, the brief summarized the facts and proceedings below and requested we independently review the record for error under People v. Wende, supra, 25 Cal.3d at pages 441-442 and Anders v. California, supra, 386 U.S. at page 744. The brief identified as a possible issue: "Whether there was sufficient evidence to prove Strong's prior [out-of-state] conviction for battery with [use of] a deadly weapon constituted a serious felony and a strike prior under California law in light of the recent California Supreme Court decision in People v. Gallardo (2017) 4 Cal.5th 120."
B
1
We provided Strong an opportunity to file a supplemental brief on his own behalf. He submitted a brief asserting he had a constitutional right to have a jury, not the court, determine whether his out-of-state conviction constituted a serious felony or a strike. However, the record shows he waived his right to a jury trial on the prior conviction allegations and, regardless, "a sentencing court is permitted to identify those facts that were ... admitted by the defendant in entering a guilty plea." (People v. Gallardo, supra, 4 Cal.5th at pp. 124, 134, 136.)
2
a
Strong also asserts his prior out-of-state conviction did not qualify as a serious felony or a strike under California law because the elements of his out-of-state conviction did not include the elements of a serious felony or strike in California. More particularly, he asserts the out-of-state offense did not require the personal use of a dangerous or deadly weapon for its commission, and there was insufficient admissible evidence showing he personally used a dangerous or deadly weapon in the commission of the out-of-state offense. The record does not support this assertion.
b
A foreign conviction qualifies as a serious felony in California if the conviction includes all the elements of a serious felony in California. (§§ 667, subds. (a)(1), (a)(4), 1192.7, subd. (c).) Similarly, a foreign conviction qualifies as a strike in California if the conviction is for an offense that would be punishable by a state prison term if committed in California and includes all the elements of a serious or a violent felony in California. (§§ 667, subd. (d)(2), 667.5, subd. (c), 1170.12, subd. (b)(2), 1192.7, subd. (c).) To determine whether a foreign conviction meets these requirements, a factfinder may examine and draw reasonable inferences from certified documents from the record of conviction. The factfinder may presume an official government document prepared contemporaneously as part of the record of conviction and describing the prior conviction is truthful and accurate. Unless rebutted, the document is sufficient evidence of the facts it recites about the nature and circumstances of the prior conviction. If the record of conviction does not reveal how the offense was committed and the offense can be committed in multiple ways, a factfinder must presume the conviction was for the least serious form of the offense. On review, we examine the record in the light most favorable to the judgment to determine whether a rational factfinder could have found the prosecution sustained its burden of proving the prior conviction allegations beyond a reasonable doubt. (People v. Miles (2008) 43 Cal.4th 1074, 1082-1083.)
Here, the parties agreed Strong's out-of-state conviction qualified as a serious felony and a strike if Strong personally used a dangerous or deadly weapon to commit the offense. (§ 1192.7, subd. (c)(23) [a "serious felony" means "any felony in which the defendant personally used a dangerous or deadly weapon"].) The record for the out-of-state convictions shows Strong pleaded guilty to battery with use of a deadly weapon as alleged in the information and he admitted the facts supporting all the elements of the offense as set forth in the information. The information alleged Strong struck the victim in the head with a rock, brick, or concrete block. Strong's admission constitutes substantial evidence he personally used a dangerous or deadly weapon in committing the out-of-state offense. Accordingly, there is substantial evidence to support the court's finding the out-of-state offense constituted a serious felony and a strike in California.
C
In addition to considering the above issues raised by Strong, we have independently reviewed the record as requested by his appointed appellate counsel. We conclude there are no reasonably arguable appellate issues. We further conclude counsel has competently represented Strong in this appeal.
IV
DISPOSITION
The judgment is affirmed.
MCCONNELL, P. J. WE CONCUR: BENKE, J. GUERRERO, J.