Opinion
C083629
01-26-2018
THE PEOPLE, Plaintiff and Respondent, v. MARK ALLEN THOMPSON, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F06184)
A jury found defendant Mark Allen Thompson guilty of burglary and two counts of robbery. In a bifurcated proceeding, the trial court found true the special allegation that defendant had a prior foreign conviction that qualified as a strike under California's three strikes law. The trial court sentenced defendant to an aggregate term of 22 years eight months in state prison.
On appeal, defendant contends there was insufficient evidence to support the trial court's strike finding. We agree and shall reverse the judgment as to the trial court's true finding regarding the strike allegation and remand for further proceedings. In all other respects, the judgment is affirmed.
BACKGROUND
After defendant waived his right to a jury, the trial court conducted a bench trial on the strike allegation alleging a prior aggravated assault conviction in Pennsylvania. The trial court received into evidence People's exhibit 89 that consisted of a 12-page document including a police criminal complaint, a two-page affidavit of probable cause, the information, the plea agreement, the sentencing order, an order dismissing defendant's motion to withdraw his plea, and two postjudgment memoranda related to defendant's parole.
The information shows defendant was charged as follows: defendant "did, at Hoffman Avenue, Oil City, Pa., attempt to cause or intentionally or knowingly cause bodily injury to a minor male D.O.B. 11-19-82, with a deadly weapon, namely with a knife or similar objects, which the defendant used to inflict numerous stab wounds." The charge was summarized in his written plea agreement as "Aggravated Assault [¶] 2702 (A)(4) [¶] Bodily Injury w/Deadly Weapon."
The People argued the conviction qualified as a strike and a serious felony because defendant (1) personally used a dangerous or deadly weapon during the commission of his crime and (2) his criminal conduct "would constitute an assault with a deadly weapon under Penal Code section 24 (a)(1)." (Pen. Code, § 1192.7, subd. (c)(23), (31).)
Undesignated statutory references are to the Penal Code. --------
The trial court found true the special allegation that defendant's 1999 conviction for violating Pennsylvania Criminal Code section 2702, subdivision (a)(4) (aggravated assault) qualified as a strike under California law. In so finding, the court noted the information included language, "which states that the Defendant did attempt to cause or intentionally or knowingly caused bodily injury to a minor male with a deadly weapon, namely, with a knife or similar object which the Defendant used to inflict numerous stab wounds.
"Then on the seventh page of the Court document in the plea agreement it shows it's Count 2, aggravated assault, has the grade and the code and specifies bodily injury, then weapon.
"So after considering the attorneys' briefs, the cited law and looking at the specific language in the court documents, the Court finds the People have met their burden of proof . . . ."
DISCUSSION
Defendant contends there is insufficient evidence that his prior conviction for aggravated assault in Pennsylvania qualified as a serious felony under California law. He contends the law of aggravated assault in Pennsylvania does not require him to have personally used a dangerous or deadly weapon in the commission of the offense. The People appear to concede there is insufficient evidence defendant personally used a deadly or dangerous weapon, but argue the Pennsylvania conviction qualifies as a strike because defendant's crime satisfied the elements of assault with a deadly weapon under California law. We conclude there is insufficient evidence to support the trial court's finding under either provision.
Under California's three strikes law, a defendant's sentence is enhanced upon proof the defendant has been previously convicted of a strike -- a "violent felony" as defined in section 667.5, subdivision (c), or a "serious felony" as defined in section 1192.7, subdivision (c). (§§ 667, subd. (f)(1), 1170.12, subd. (d)(1).) If a crime is not among the crimes listed in those statutory provisions, it qualifies as a serious felony within the meaning of section 1192.7, subdivision (c) as "any felony in which the defendant personally used a dangerous or deadly weapon." (§ 1192.8, subd. (a); see § 1192.7, subd. (c)(23).)
" ' "In order for a prior conviction from another jurisdiction to qualify as a strike under the Three Strikes law, it must involve the same conduct as would qualify as a strike in California" ' [citation], and the statutory elements of the foreign crime must include all the elements of the California strike offense [citation]. 'There is, however, no guarantee the statutory definition of the crime in the other jurisdiction will contain all the necessary elements to qualify as a predicate felony in California.' [Citation.] Thus, if the foreign law can be violated in different ways, and ' "the record does not disclose any of the facts of the offense actually committed, the court will presume that the prior conviction was for the least offense punishable under the foreign law." ' " (People v. Denard (2015) 242 Cal.App.4th 1012, 1024.)
We review defendant's challenge to the trial court's strike finding in accordance with the usual rules on appeal applicable to claims of insufficient evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Cortez (1999) 73 Cal.App.4th 276, 279.) " 'The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " (Ochoa, at p. 1206.)
I
The Elements Of The Offense
In 1999, defendant pled guilty to aggravated assault in Pennsylvania. In 1999, a defendant was guilty of aggravated assault in Pennsylvania "if he . . . attempt[ed] to cause or intentionally or knowingly cause[d] bodily injury to another with a deadly weapon . . . ." (18 Pa. Cons. Stat. Ann. § 2702, subd. (A)(4) 1999.) A defendant could be found guilty of aggravated assault through accomplice liability. (Com. v. Causey (Pa. Super. Ct. 2003) 833 A.2d 165, 172-173 [affirming aggravated assault conviction under accomplice liability -- the defendant was the getaway driver]; 18 Pa. Cons. Stat. Ann. § 306, subds. (A), (B)(3), and (C)(1) [defining accomplice liability].) In 1999, Pennsylvania law defined an accomplice as follows: "A person is an accomplice of another person in the commission of an offense if: [¶] (1) with the intent of promoting or facilitating the commission of the offense, he: [¶] (i) solicits such other person to commit it; or [¶] (ii) aids or agrees or attempts to aid such other person in planning or committing it; or [¶] (2) his conduct is expressly declared by law to establish his complicity." (18 Pa. Cons. Stat. Ann. § 306, subd. (C)(1) 1999, italics added.) Thus one could be liable as an accomplice for attempting to aid another person in planning or committing a crime.
Accomplice liability in California is more narrow: there is no accomplice liability for attempting to aid and abet in the commission of a crime. " 'A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.' " (People v. Delgado (2013) 56 Cal.4th 480, 486; see § 31.) Moreover, there is no accomplice liability for the personal use of a dangerous or deadly weapon, which requires a defendant to personally use a dangerous or deadly weapon. (See § 1192.7, subd. (c)(23).)
Accordingly, the People correctly concede that a violation of the Pennsylvania statute does not by itself establish that defendant's 1999 conviction qualifies as a serious felony or a strike under California law. (See People v. Saez (2015) 237 Cal.App.4th 1177, 1194-1195 [finding broader aider-and-abettor liability as a basis for concluding out-of-state crime has broader liability than a particular serious felony in California].)
II
The Record Of Conviction
The Pennsylvania record of conviction admitted into evidence consisted of a police criminal complaint, a two-page affidavit of probable cause, the information, the plea agreement, the sentencing order, an order dismissing defendant's motion to withdraw his plea, and two postjudgment memoranda related to defendant's parole. The probable cause affidavit and police criminal complaint describe the facts of the underlying crime with some detail. We cannot, however, look to those documents because they were prepared as part of the investigation and arrest and there is no evidence in the record that they were either attached to the information or presented to the court at the time of conviction. (See People v. Denard, supra, 242 Cal.App.4th at pp. 1029-1030 [concluding Florida probable cause affidavit could not be considered part of the record because the affidavit "could hardly be deemed a reliable account of the conduct underlying the offense for which [the defendant] was convicted"].) We are, therefore, limited to the remaining documents.
None of the remaining documents provide evidence that defendant admitted to being the perpetrator of the assault rather than an accomplice. Thus, there is no evidence that defendant admitted to personally using a dangerous or deadly weapon to injure the victim. Nor is there evidence that defendant admitted to successfully aiding or abetting the perpetrator in the assault rather than only attempting to do so. Accordingly, on this record, there is insufficient evidence to establish the prior conviction qualifies as a serious felony under section 1192.7, subdivision (c)(23) or (31).
Defendant asserts he is entitled to resentencing. But consistent with California Supreme Court authority, we remand the matter for possible retrial on the prior, which is not barred by double jeopardy principles. (People v. Barragan (2004) 32 Cal.4th 236, 241.)
DISPOSITION
The finding that defendant's prior Pennsylvania conviction for aggravated assault in 1999 was for a serious felony within the meaning of the three strikes law is reversed, and the enhancements imposed for that prior conviction are stricken.
If the People elect to retry the strike allegation, the trial court shall resentence defendant following retrial. If, within 60 days after the remittitur issues from this court, the People have not filed and served an election to retry the strike allegation, the trial court shall dismiss the strike allegation for the 1999 prior conviction and resentence defendant.
In all other respects, the judgment is affirmed.
/s/_________
Robie, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Mauro, J.