Filed 5/8/17 P. v. Boyles CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
DENNIS JAMES BOYLES,
Defendant and Appellant.
F071738
(Stanislaus Super. Ct. No. 1427484)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Nancy
Ashley, Judge.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Charity S.
Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
2.
INTRODUCTION
Appellant/defendant Dennis James Boyles was convicted of voluntary
manslaughter with two prior strike convictions, and sentenced to the third strike term of
33 years to life plus 11 years. The prior convictions were for attempted murder and
aggravated battery, and both occurred in Illinois.
On appeal, defendant contends the People failed to meet its burden to prove
beyond a reasonable doubt that he did not engage in self-defense, and the homicide was
not justifiable. Defendant also argues the People did not prove that his prior conviction
in Illinois for aggravated battery was a serious felony and a strike under California law.
We affirm.
FACTS
In December 2010, defendant and his father, Dennis Allen Boyles, lived in a twobedroom
house in Modesto.1
Defendant had moved into his father’s house about two
years earlier. Defendant had a cell phone and drove a van. He had worked for a lawn
mower company for a while but had quit the job. Mr. Boyles had never seen defendant
with any men in the house.
On December 24, 2010, Mr. Boyles left work around 3:00 p.m., which was earlier
than usual since it was Christmas Eve. Defendant was still living at his house that day.
Mr. Boyles testified that when he arrived home, he noticed the outside gate was
locked in a different manner from the way defendant usually locked it. Mr. Boyles also
discovered the house’s back door was wide open. He entered the house and found
another rear door open. Mr. Boyles found defendant’s coffee cup, and thought it was odd
that there was still coffee inside it because defendant usually cleaned things up. Mr.

1 For ease of reference, defendant’s father will be referred to as Mr. Boyles.
3.
Boyles testified nothing else was out of place in the house, and he did not see any blood
on the premises.
Mr. Boyles went to defendant’s bedroom, and the door was slightly ajar. He
looked through the open door and saw a man lying on the bed. Mr. Boyles did not
recognize the man and had never seen him before. Defendant was not present in the
room or the house.
Mr. Boyles testified the man was lying face up on the bed and wearing a heavy
coat. The sheriff’s department later identified this man as Tevan Nicholson. Mr. Boyles
asked Nicholson what he was doing there and told him to get out. Nicholson did not
move or respond.
Mr. Boyles went outside and called the police. The dispatcher advised Mr. Boyles
that officers were involved in another call, and they would arrive as soon as possible.
Mr. Boyles went back into the bedroom and discovered the man had rolled over and was
lying face up on the floor. He did not see any blood.
Around 3:45 p.m., Deputies Fara and Knittel of the Stanislaus County Sheriff’s
Department arrived at the house and went into defendant’s bedroom. They found
Nicholson lying face down on defendant’s bed, “kind of crosswise with his feet hanging
off the bed.”
The deputies yelled at Nicholson to roll over and show his hands. Nicholson
rolled onto his back. The deputies discovered the front of his clothes were wet, and there
was a bloodstain on the bed where he had been lying face down.
The deputies opened Nicholson’s clothing and found a small puncture wound on
his chest. The deputies tried to question Nicholson, but he did not respond. Nicholson
was lethargic, his pulse was very light, and his breathing was shallow.
The deputies found Nicholson’s wallet and identification in his pocket. Deputy
Fara did not smell any alcohol from Nicholson’s breath. Deputy Knittel smelled alcohol
in the room but not on Nicholson.
4.
The bedroom and its contents, including the bed and blankets where Nicholson
was found, had not been disturbed, pushed, or knocked over to indicate that a struggle
had occurred. A paper bag with a bottle of beer was on a dresser counter. There was a
backpack on the floor. There was no other blood in the bedroom or the house.
The fatal wound
The paramedics responded and transported Nicholson to the hospital, but he died
of internal bleeding in his right lung. Nicholson had been wearing two winter jackets.
He had suffered a single puncture wound that went through his clothing, entered the right
front side of his chest, went past his fourth rib, and entered his right lung. The
pathologist testified the fatal injury was consistent with a “powerful stabbing wound”
inflicted by a very sharp, single-edged knife. Nicholson did not have any defensive
wounds.
Nicholson’s blood-alcohol levels were 0.25 percent based on testing his blood, and
0.29 percent based on testing the vitreous fluid in his eye. Both results were consistent
with intoxication. Nicholson was five feet eight inches tall, and weighed 155 pounds.
Arrest of defendant
Defendant was not located or apprehended at the time that Nicholson was found in
his bedroom. Defendant’s van was missing. Mr. Boyles called defendant’s cell phone,
but he did not answer. The homicide weapon was never found.
On or about December 29, 2010, defendant’s van was found in Visalia.
Defendant’s driver’s license, vehicle registration, and insurance documents were found
inside the van. There was no blood in the van.
Around midnight on January 11, 2011, Los Angeles Police Officer Knight was on
patrol at Venice Beach in Southern California. He was driving across the sand and found
a man sleeping on the beach. He asked the man for identification. Defendant identified
himself. Knight discovered defendant was wanted in Stanislaus County. Defendant was
taken into custody.
5.
Defendant’s postarrest statement
The Los Angeles Police Department advised officials in Stanislaus County that
defendant was in custody. Stanislaus County Sheriff’s Detective Hatfield and Sergeant
McQuery drove to Los Angeles and conducted a videotaped interview with defendant at
the police department. Defendant was advised of the warnings pursuant to Miranda v.
Arizona (1966) 384 U.S. 436, and he agreed to answer questions.
Detective Hatfield advised defendant that a dead man had been found in his
father’s house in Modesto, and his father might be taken into custody for it. Defendant
said he used to live in Modesto with his father and had driven an old van. Defendant said
he had last seen his father on December 21 or 22, 2010. Defendant said he left Modesto
and hitchhiked to Southern California. Defendant said he did not have a cell phone, he
did not have an address, and he was currently a transient. Hatfield showed defendant a
photograph of the victim, and defendant repeatedly said he did not know the man.
Detective Hatfield kept asking defendant why the man had been killed and
whether it was self-defense. Defendant finally said yes, and he would tell him what
happened.
Defendant said he had been driving around in his van in Modesto. Defendant had
been drinking earlier in the day. When defendant stopped at an intersection, the man
approached the van and asked for change for a drink. Defendant said he might have
change at his house and invited the man to get into his van. Defendant drove to his
father’s house and asked the man to wait outside because his father did not like strangers
there.
Defendant said he went into the house and used the bathroom. The man followed
defendant into the bathroom and acted “kind of weird.” The man exposed his genitals
and taunted defendant about having sex. Defendant went into his bedroom to get some
change, and the man sat on his bed. The man had a backpack. The man became
aggressive, and defendant thought he wanted to have sex. Defendant told the man that he
6.
was not gay, and he was just trying to help him out. Defendant said the man was
agitated, so defendant told him to watch television and relax.
Defendant said the man said he had to use the bathroom. The man returned to the
bedroom and he was holding a large kitchen knife. Defendant did not know where the
man got the knife. Defendant said, “We were wrestling and … we fell, like on my bed …
and that was it … the knife was kind of like sticking out.” Defendant said he left the
knife at the scene. Defendant said he drove away in his van and he crashed in the Tulare
area. He left the van and hitched rides to Los Angeles.
Defendant denied that he agreed to pay the man to have sex with him. Defendant
said there was a struggle, they wrestled around for the knife, and the man was stabbed
with the knife when “we kind of tripped and fell backwards.”
Detective Hatfield advised defendant that the bedroom was neat and there were no
signs of a struggle or fight. Defendant said it was a short struggle in close quarters.
Hatfield replied that the bed was not messed up.
Defendant asked Detective Hatfield why he initially said that his father was in
trouble. Hatfield replied that he made that statement to see how defendant would
respond. Hatfield asked defendant why he did not call the police to report that he stabbed
the man in self-defense. Defendant replied, “[I]t don’t always work like that.”
Detective Hatfield told defendant that his story about the man being stabbed when
they fell on the bed “doesn’t fly.” Defendant said that was how it happened. Defendant
added that it was possible he blacked out because he was stunned by the entire incident.
Detective Hatfield encouraged defendant to tell the truth. Defendant asked,
“[W]hat if I got the knife from him and stabbed him?” Defendant said they were
wrestling and he was trying to keep himself from being harmed. Defendant said he just
tried to help the man.
Detective Hatfield told defendant that he needed to know what happened, and
defendant was going to be charged with murder. Defendant again changed his story and
7.
said that in “the heat of the moment,” he might have been able to take the knife away
from the man. Hatfield asked defendant if he had any defensive wounds. Defendant said
he had a little nick on his hand. Hatfield saw the nick and asked, “I mean from this
incident.” Defendant replied, “I don’t think so.”2
Defendant asked Detective Hatfield, “You said he died, huh?” Hatfield said yes,
again said there were no signs of a fight or struggle in the bedroom, and encouraged
defendant to tell the truth. Hatfield asked defendant why he did not throw the man out of
the house when he exposed himself. Defendant said he told the man to get out, but the
man did not move. Defendant’s father never wanted people around the house, and that
left defendant “walking on eggshells” to avoid an altercation.
Defendant said after he stabbed the man, he “hit the highway” in his van and
headed south. Detective Hatfield said “any sane person” would have called the police for
help, or at least dialed 911 and then left. Defendant said he was not real smart. Hatfield
asked defendant where his cell phone was. Defendant said he did not know. Hatfield
said he could subpoena his cell phone records, check his calls, and determine which
towers were getting the signals to provide a timeline for his actions after he left Modesto.
Defendant again changed his story and implied that he knew the victim: “Look …
I cared about the guy…. Man, oh man, oh man.” (Italics added.) Hatfield asked
defendant if he killed the man in cold blood. Defendant said no, but insisted the man was
trying to do something to him: “I wouldn’t say rape … but … I’m not gay.”
“Hatfield: Is that … when you stabbed him?
“[Defendant]: Yeah …
“Hatfield: It[] wasn’t fighting over the knife … he was trying to
get a piece off of ‘ya …

2 At trial, Detective Hatfield testified that defendant pointed to a nick on his hand.
Hatfield testified he did not see any injuries on defendant that would be consistent with a
knife fight or physical struggle.
8.
“[Defendant]: Uh, yeah…
“Hatfield: Okay, and that’s when you stabbed him? … Cuz that’s
very plausible.
“[Defendant]: It is plausible…. That’s exactly what happened.”
(Italics added.)
Detective Hatfield asked defendant why it was so hard to tell him what happened.
Defendant said it was not going to bring back the victim or change anything. Hatfield
said it might bring some closure to the victim’s family. Hatfield asked defendant where
the knife was. Defendant said he did not know.
As the interview ended, defendant asked: “Are you sure he ain’t still alive.”
Hatfield replied, “Oh, I’m positive.”
Discovery of defendant’s cell phone
Around 4:30 a.m. on January 13, 2011, defendant’s cell phone was found on the
side of an offramp from southbound Highway 99 near Kingsburg, about 20 miles south of
Fresno. A motorist had stopped on the ramp to clear a road obstruction and found the cell
phone lying in the dirt. The motorist believed the cell phone had been there for a while
because there was water behind the display. He took the cell phone home, dried and
charged it, and found telephone numbers were stored on it. He called the telephone
numbers and eventually reached Mr. Boyles, defendant’s father, and mailed the cell
phone to him. At trial, Mr. Boyles testified he received the cell phone in the mail, and it
belonged to defendant.
Defense evidence
Defendant did not testify.
Dr. Terri Haddix, a forensic pathology expert, testified for the defense that the
victim suffered a fatal sharp-force stab entry consistent with a single-edged knife. Dr.
Haddix concurred with the pathologist’s opinion that Nicholson died from a knife wound
inflicted by a single-edge knife that caused massive blood loss in his right lung. The
9.
knife entered the victim’s body from front to back, and right to left. The knife may have
skimmed the rib but it was not fractured. There was sufficient force generated for the
knife to pass through the victim’s body and into the lung. The lung would have filled
with blood within minutes, restricting the victim’s oxygen supply and resulting in
unconsciousness.
Dr. Haddix testified it was difficult to determine how defendant and the victim
were oriented to each other when the victim was stabbed. The fatal wound was in a
location where “it would be accessible and capable of being inflicted by the parties in a
number of different positions.” It was possible that the victim could have survived the
wound if he had received medical treatment immediately after the stabbing.
The charge and instructions
Defendant was charged with second degree murder (Pen. Code, § 187, subd. (a)),3
with the special allegation that he personally used a deadly or dangerous weapon, a knife
(§ 12022, subd. (b)); along with two prior serious felony convictions (§ 667,
subd. (a)(1)), and two prior strike convictions. The prior convictions were from Illinois
for attempted murder in 2000; and aggravated battery in 1987.
The jury was instructed on self-defense and justifiable homicide; that the People
had the burden of proving beyond a reasonable doubt that the killing was not justified;
and if the People failed to meet this burden, the jury had to find the defendant not guilty
of murder or manslaughter. The jury was also instructed on second degree murder;
express and implied malice; voluntary manslaughter based on both sudden quarrel/heat of
passion and imperfect self-defense; and involuntary manslaughter based on criminal
negligence.
The prosecutor argued defendant was guilty of second degree murder, and his selfdefense
and provocation claims were not credible.

3 All further statutory references are to the Penal Code unless otherwise stated.
10.
Defense counsel argued the jury should find defendant not guilty of any offenses
because the prosecution failed to prove defendant’s guilt beyond a reasonable doubt or
that the killing was not justified. Counsel argued defendant engaged in lawful selfdefense.
In the alternative, counsel argued defendant was guilty of manslaughter based
on either unreasonable self-defense or heat of passion/provocation.
Verdict and sentence
The jury found defendant not guilty of second degree murder, but guilty of the
lesser included offense of voluntary manslaughter with the personal use allegation true.
As we will discuss, defendant waived a jury trial on the prior conviction
allegations, and the court found both allegations true.
The court denied defendant’s motion to dismiss one or both prior strike
convictions, and sentenced defendant to the third strike term of 33 years to life for
voluntary manslaughter plus a determinate term of 11 years: two consecutive terms of
five years for the prior serious felony enhancements, and one year for the personal use
enhancement.
DISCUSSION
I. Substantial Evidence of Voluntary Manslaughter
Defendant contends his conviction for voluntary manslaughter must be reversed
because the People failed to bear its burden of proving beyond a reasonable doubt that he
did not act in self-defense when he stabbed Nicholson. Defendant contends his postarrest
statement and the surrounding circumstances did not negate his claim of self-defense and
justifiable homicide.
“The standard of review is well settled: On appeal, we review the whole record in
the light most favorable to the judgment below to determine whether it discloses
substantial evidence – that is, evidence that is reasonable, credible and of solid value –
from which a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citations.] ‘ “[I]f the verdict is supported by substantial evidence, we must
11.
accord due deference to the trier of fact and not substitute our evaluation of a witness’s
credibility for that of the fact finder.” ’ [Citation.] ‘The standard of review is the same in
cases in which the People rely mainly on circumstantial evidence. [Citation.] “Although
it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is
susceptible of two interpretations, one of which suggests guilt and the other innocence
[citations], it is the jury, not the appellate court which must be convinced of the
defendant’s guilt beyond a reasonable doubt.” ’ [Citation.]” (People v. Snow (2003) 30
Cal.4th 43, 66–67.)
A. Self-defense and Justifiable Homicide
“We begin by reviewing the related concepts of self-defense and defense of others.
Self-defense is perfect or imperfect. For perfect self-defense, one must actually and
reasonably believe in the necessity of defending oneself from imminent danger of death
or great bodily injury. [Citation.] A killing committed in perfect self-defense is neither
murder nor manslaughter; it is justifiable homicide. [Citations.]” (People v. Randle
(2005) 35 Cal.4th 987, 994, italics in original; overruled on another ground by People v.
Sarun Chun (2009) 45 Cal.4th 1172, 1201.) “Self-defense, when based on a reasonable
belief that killing is necessary to avert an imminent threat of death or great bodily injury,
is a complete justification, and such a killing is not a crime. [Citations.]” (People v.
Elmore (2014) 59 Cal.4th 121, 133–134, italics in original.)
When the evidence raises the possibility that the defendant acted in self-defense or
with another justification, the burden is on the prosecution to prove beyond a reasonable
doubt that the homicide was unlawful and not justifiable. (Mullaney v. Wilbur (1975)
421 U.S. 684, 701–704; People v. Banks (1976) 67 Cal.App.3d 379, 383–384; People v.
Romero (2007) 149 Cal.App.4th 29, 41-42.) “[D]efendant is not required to establish
self-defense … to be entitled to a not guilty verdict; he need only raise a reasonable
doubt. It ultimately is the prosecution’s burden to prove the absence of justification
12.
beyond a reasonable doubt. [Citation.]” (People v. Lloyd (2015) 236 Cal.App.4th 49,
63.)
B. Analysis
Defendant contends his conviction for voluntary manslaughter must be reversed
because the People failed to bear its burden of proving beyond a reasonable doubt that he
did not act in self-defense when he stabbed Nicholson, based on his statements during the
postarrest interview. Defendant asserts that while he initially denied involvement, he
unequivocally stated that Nicholson acted aggressively and produced a knife; that he
stabbed Nicholson while they struggled over the knife, and he was trying to avoid harm.
Defendant asserts there was no evidence refuting his postarrest statements that Nicholson
produced the knife, approached him in an aggressive manner, and he stabbed Nicholson
during the struggle over the knife, such that the People did not meet its burden of proving
beyond a reasonable doubt that the homicide was not justified, and his conviction for
voluntary manslaughter must be reversed.
We first address defendant’s contention that the prosecution failed to meet its
burden of proving beyond a reasonable doubt that he was not acting in self-defense. As
explained ante, the burden is on the prosecution to prove beyond a reasonable doubt that
defendant did not act in self-defense or with another legal justification. However,
defendant asserts that since there was evidence that supports his self-defense claim, we
must find the evidence was insufficient to support a contrary finding and his
manslaughter conviction must be reversed. This assertion is incorrect. “ ‘The test on
appeal is whether there is substantial evidence to support the conclusion of the trier of
fact; it is not whether guilt is established beyond a reasonable doubt. [Citation.]’
[Citations.]” (People v. Gray (1998) 66 Cal.App.4th 973, 983–984; People v. Liu (1996)
46 Cal.App.4th 1119, 1131–1132.)
“[W]here the evidence is uncontroverted and establishes all of the elements for a
finding of self-defense it may be held as a matter of law that the killing was justified;
13.
however, where some of the evidence tends to show a situation in which a killing may
not be justified then the issue is a question of fact for the jury to determine. [Citation.]”
(People v. Clark (1982) 130 Cal.App.3d 371, 379, abrogated on another point by People
v. Blakeley (2000) 23 Cal.4th 82, 92.)
While there may have been some evidence from defendant’s postarrest statement
that he acted in self-defense, we review the jury’s contrary finding under the substantial
evidence standard, as set forth above. “When undertaking such review, our opinion that
the evidence could reasonably be reconciled with a finding of innocence or a lesser
degree of crime does not warrant a reversal of the judgment. [Citation.]” (People v. Hill
(1998) 17 Cal.4th 800, 849.) Thus, even if defendant’s postarrest statements might have
supported a finding that he acted in the reasonable belief in the need to defend himself,
and he used a reasonable amount of force in light of the perceived threat, the jury was not
compelled to accept it. (People v. Young (2005) 34 Cal.4th 1149, 1180–1181.)
We find there is substantial evidence to support the jury’s verdict in this case for
voluntary manslaughter. In contrast to perfect self-defense, “ ‘[o]ne acting in imperfect
self-defense also actually believes he must defend himself from imminent danger of death
or great bodily injury; however, his belief is unreasonable. [Citations.] Imperfect selfdefense
mitigates, rather than justifies, homicide; it does so by negating the element of
malice. [Citations.]’ ” (People v. Randle, supra, 35 Cal.4th at p. 994.) A defendant who
commits an intentional and unlawful killing but lacks malice is guilty of voluntary
manslaughter, a lesser included offense of murder. (People v. Beltran (2013) 56 Cal.4th
935, 942; People v. Rios (2000) 23 Cal.4th 450, 460.) “[A]n intentional killing is reduced
to voluntary manslaughter if other evidence negates malice. Malice is presumptively
absent when the defendant acts upon a sudden quarrel or heat of passion on sufficient
provocation [citation], or kills in the unreasonable, but good faith, belief that deadly force
is necessary in self-defense. [Citation.]” (People v. Lee (1999) 20 Cal.4th 47, 59.)
14.
Nicholson was stabbed once in the chest; he did not have any defensive wounds
and there was no evidence that a struggle occurred in the house, defendant’s bedroom, or
even on the bed itself. The knife was plunged into Nicholson’s chest with sufficient force
to go through two winter coats, penetrate his chest, go past a rib, and enter his lung,
resulting in fatal internal bleeding. Instead of calling the police to report that a stranger
had tried to assault him, defendant immediately fled the scene with the knowledge that
his father would return home and find a strange man lying on the bed, bleeding from a
chest wound. Defendant headed to Los Angeles, somehow disposed of the knife without
trailing blood in the house or his van, headed to Southern California, discarded his cell
phone along the side of southbound Highway 99, and abandoned his vehicle on the way.
Defendant did not testify at trial. Contrary to defendant’s appellate contentions,
his postarrest statements did not unequivocally set forth uncontroverted evidence of a
justifiable homicide. Instead, defendant offered several different explanations about the
situation, which likely led the jury to question his credibility on these points.
Defendant’s first story was that he did not know anything about the dead man who had
been found in his bedroom. Even though he was advised that his father might be held
responsible, defendant insisted he did not know the man; he had not talked to his father;
he was a transient; and he had last been at the house two days before the homicide.
Detective Hatfield repeatedly asked defendant why the man had been killed and
whether it was self-defense. Defendant ultimately said yes, that it was self-defense.
Defendant claimed he picked up the unknown man to give him some change. Defendant
claimed the man followed him into the house, exposed himself, and taunted him about
having sex. The man followed defendant into his bedroom and was agitated. The man
went into the bathroom and emerged with a knife. Defendant claimed they wrestled over
the knife, they tripped and fell backwards on the bed, and the man was somehow stabbed
with the knife. Defendant’s second story thus relied on some aspect of self-defense, but
15.
he seemed to imply that the man was accidentally stabbed during the physical struggle,
and not that defendant stabbed the man to protect himself.
Detective Hatfield told defendant that his story did not “fly” because the bedroom
was neat, and there was no evidence of a struggle or fight. In response, defendant offered
a third story, and said it was possible that he blacked out because he was stunned.
Defendant used this third story to imply that something else may have happened that
resulted in the fatal stab wound, but he could not remember what it was.
Detective Hatfield repeatedly encouraged defendant to tell the truth. Defendant
replied, “[W]hat if I got the knife from him and stabbed him?” Hatfield advised
defendant he was going to be charged with murder. Defendant changed his story again,
and said he might have taken the knife away from the man in the “heat of the moment.”
As the interview continued, defendant’s story changed again and said, “I cared
about the guy,” implying that the victim was not a stranger that he had just met on the
street. Defendant denied that he killed the victim in cold blood and claimed the man was
trying to do something to him. Detective Hatfield asked: “It[] wasn’t fighting over the
knife … he was trying to get a piece off of ‘ya,’ ” and that’s when he stabbed the man.
Defendant agreed and said, “It is plausible…. That’s exactly what happened,” apparently
agreeing with Hatfield’s suggestion that they were not fighting over the knife, but the
victim had tried to assault him in some way.
Given defendant’s inconsistent and varied accounts, and the nature of the crime
scene, the jury could have rejected all or a part of defendant’s explanations for the
homicide. More importantly, there is substantial evidence to support the jury’s finding
that it was not a justifiable homicide, that defendant did not act in “perfect” self-defense,
and his conduct instead supported his conviction for voluntary manslaughter.
II. Defendant’s Prior Strike Conviction
The information alleged that defendant had two prior serious felony convictions
and two prior strike convictions based on convictions, which occurred in Illinois: (1)
16.
attempted murder in 2000, and (2) “aggravated battery” in 1987. Defendant waived a
jury trial on the prior conviction allegations, and the court found them true. Defendant
was sentenced to a third strike term.
Defendant has not challenged the court’s finding that his prior conviction in
Illinois for attempted murder is a strike. However, he challenges the court’s finding that
his Illinois conviction for aggravated battery is a strike, and asserts there is insufficient
evidence that he personally inflicted great bodily injury on any person “other than an
accomplice,” as required for the Illinois offense to be a serious felony in California.
A. Prior Strike Convictions and the Record of Conviction
As relevant to this case, section 1192.7, subdivision (c) defines a serious felony to
include “any felony in which the defendant personally inflicts great bodily injury on any
person, other than an accomplice, or any felony in which the defendant personally uses a
firearm.” (§ 1192.7, subd. (c)(8), italics added.)
A prior conviction in another jurisdiction qualifies as a strike if it includes all the
elements of a serious or violent felony under California law. (People v. Woodell (1998)
17 Cal.4th 448, 453, People v. Avery (2002) 27 Cal.4th 49, 53.) In determining the
substance of a prior conviction, the court may look to the “entire record of the
conviction.” (People v. Woodell, supra, 17 Cal.4th at pp. 452–453; People v. Guerrero
(1988) 44 Cal.3d 343, 355; People v. Rodriguez (1998) 17 Cal.4th 253, 261–262.)
The record of conviction includes charging documents, the information, minute
orders, the preliminary hearing transcript (in the absence of a trial), the trial transcript, a
reporter’s transcript, change of plea form, the court’s records of the defendant’s
admission or plea, and the appellate record, including the appellate opinion, from the
prior conviction. (People v. Woodell, supra, 17 Cal.4th at p. 456; People v. Reed (1996)
13 Cal.4th 217, 223–224; People v. Bartow (1996) 46 Cal.App.4th 1573, 1578–1580;
People v. Abarca (1991) 233 Cal.App.3d 1347, 1350; People v. Harrell (1989) 207
Cal.App.3d 1439, 1443–1444.) It also includes sworn statements at the sentencing
17.
hearing. (People v. Thoma (2007) 150 Cal.App.4th 1096, 1101; People v. Roberts (2011)
195 Cal.App.4th 1106, 1127–1128.)
The record of conviction does not generally include police reports (Draeger v.
Reed (1999) 69 Cal.App.4th 1511, 1521; Moles v. Gourley (2003) 112 Cal.App.4th 1049,
1060), the defendant’s statements made after conviction and recounted in a
postconviction report of the probation officer, or a hearsay account of the facts of
defendant’s offenses summarized in the probation report (People v. Trujillo (2006) 40
Cal.4th 165, 179–180; People v. Reed, supra, 13 Cal.4th at pp. 230–231; People v.
Burnes (2015) 242 Cal.App.4th 1452, 1459–1460; People v. Oehmigen (2014) 232
Cal.App.4th 1, 5, 10.)
Even when a document is part of the record of conviction, it is not automatically
relevant or admissible for a particular purpose. (See People v. Trujillo, supra, 40 Cal.4th
at pp. 179–181; People v. Woodell, supra, 17 Cal.4th at p. 457.) Its admission must
comport with the rules of evidence, particularly the hearsay rule and exceptions thereto.
(See People v. Woodell, supra, at p. 457–461; People v. Reed, supra, 13 Cal.4th at
pp. 220, 230–231.)
“On review, we examine the record in the light most favorable to the judgment to
ascertain whether it is supported by substantial evidence. In other words, we determine
whether a rational trier of fact could have found that the prosecution sustained its burden
of proving the elements of the sentence enhancement beyond a reasonable doubt.
[Citations.]” (People v. Delgado (2008) 43 Cal.4th 1059, 1067.) “[The] trier of fact is
entitled to draw reasonable inferences from certified records offered to prove a defendant
suffered a prior conviction ….” (People v. Henley (1999) 72 Cal.App.4th 555, 561
(Henley); People v. Delgado, supra, at p. 1066.)
B. Defendant’s 1987 Illinois Conviction for Aggravated Battery
In the instant case, the prosecution introduced documentary exhibits consisting of
certified copies of the records of convictions for both Illinois offenses. The exhibits
18.
contained the following evidence about the 1987 Illinois conviction for “aggravated
battery.”
On November 3, 1986, a criminal information was filed in the Circuit Court of
LaSalle County, Illinois, alleging that at 2:45 a.m. on November 1, 1986, defendant
committed the offense of “aggravated battery (Class 3 Felony),” in violation of Illinois
Revised Statutes, Chapter 38, Section 12-3,
4 as follows:
“[S]aid defendant, in committing a battery … without legal justification,
intentionally caused great bodily harm to Robert E. Strouss, in that he
stomped on the back of Robert E. Strouss’s head.”
The information only charged defendant with committing this single offense, and
there were no codefendants.
Also on November 3, 1986, the court set bond at $10,000, upon the condition that
defendant could have no contact, direct or indirect, with the victim, Robert E. Strouss.
On or about November 12, 1986, the grand jury of LaSalle County returned an
indictment that charged defendant with aggravated battery, again alleging he committed a
battery without legal justification and “intentionally caused great bodily harm to Robert
E. Strouss, in that he stomped on the back of Robert E. Strouss’s head.” On November
13, 1986, defendant pleaded not guilty.
On or about February 25, 1987, defendant entered a “blind plea” of guilty as
charged to aggravated battery.5

4 As to the Illinois statute under which defendant was charged and to which he
pleaded guilty: “Battery is defined by Section 12-3(a) of the Criminal Code.
(Ill.Rev.Stat.1971, ch. 38, s 12-3(a).) [¶] ‘A person commits battery if he intentionally
or knowingly without legal justification and by any means, (1) causes bodily harm to an
individual or (2) makes physical contact of an insulting or provoking nature with an
individual.’ ” (People v. Brown (1974) 18 Ill.App.3d 1049, 1056.)
5 “[I]t is common knowledge that plea bargaining generally results in a reduction
of the original charge. In a plea agreement, the defendant is offered some consideration
in exchange for his agreement to enter a plea of guilty, which one who enters a blind plea
does not receive.” (People v. Eckhardt (1989) 127 Ill.2d 146, 151–152, italics added;
People v. Fern (1993) 240 Ill.App.3d 1031, 1042.)
19.
On March 30, 1987, the court convened the sentencing hearing. Both parties
stipulated to the testimony of the victim’s treating physician if he had been called: that
the victim was hospitalized from November 1 to 10, 1986; he suffered a brain concussion
and two separate distinct skull fractures, behind the left ear and in the right forehead; and
there were lacerations and swelling at the site of each fracture. After discharged from the
hospital, the victim suffered from dizziness because of the brainstem injury and cerebral
fluid dripped out of his nose. The leaks were subsequently sealed. The victim also had a
permanent and complete hearing loss on the left side and ringing in the ear, due to the
cranial nerve being severed at the site of the fracture behind the left ear. The victim
experienced coordination and balance deficits associated with severance of the cranial
nerve. The hearing loss and balance problems were likely permanent.
The minute order for the sentencing hearing states that in addition to this
stipulation, the People called several witnesses and defendant testified on his own behalf.
A reporter’s transcript of this testimony is not included in the record.
At the conclusion of the hearing, the court sentenced defendant to two years in
prison for aggravated battery.
C. The Court’s Findings in This Case
As noted ante, defendant waived a jury trial on the truth of the prior conviction
allegations in this case and the court conducted the hearing. Defense counsel objected to
the prosecution’s introduction of the documentary exhibits, to the extent that any of the
documents contained hearsay and were not certified copies from the Illinois court’s
records of convictions. The prosecutor stated the entirety of the exhibits were certified
copies and admissible.
The court found the exhibits constituted certified copies from defendant’s
convictions in Illinois. As to the aggravated battery conviction, defense counsel objected
to the parties’ stipulation at the sentencing hearing as to the physician’s testimony about
the victim’s injuries because that stipulation occurred after defendant entered his plea.
20.
The prosecutor replied the stipulation was admissible, and the entirety of the exhibits
established that defendant personally inflicted the victim’s injuries, and the victim
suffered great bodily injury such that defendant’s prior conviction in Illinois for
aggravated battery constituted a serious felony in California. Defense counsel replied
there was no evidence defendant personally inflicted the injuries on the victim, and
another party could have been separately charged.
The court was “absolutely satisfied” that both of defendant’s prior convictions in
Illinois were strikes under California law. The court found the record of conviction
established that defendant pled “as charged” to aggravated battery, the charging
indictment stated that he stomped on the victim’s head and caused great bodily injury,
and there was “more than enough evidence” that it was a strike.
D. Analysis
As explained ante, section 1192.7, subdivision (c)(8) defines a serious felony to
include “any felony in which the defendant personally inflicts great bodily injury on any
person, other than an accomplice, or any felony in which the defendant personally uses a
firearm.” (Italics added).
On appeal, defendant’s only contention is that there is insufficient evidence to
support the court’s finding that his conviction for aggravated battery in Illinois is a
serious felony because “the record does not disclose that the victim was not an
accomplice.” Defendant asserts the matter must be remanded because the superior court
never addressed whether the prosecution met its burden of proving whether the victim
was not an accomplice.
“An accomplice is hereby defined as one who is liable to prosecution for the
identical offense charged against the defendant on trial in the cause in which the
testimony of the accomplice is given.” (§ 1111.) “ ‘[A]n accomplice is one who aids or
promotes the perpetrator’s crime with knowledge of the perpetrator’s unlawful purpose
and an intent to assist in the commission of the target crime ....’ [Citation.] ‘In order to
21.
be an accomplice, the witness must be chargeable with the crime as a principal (§ 31) and
not merely as an accessory after the fact (§§ 32, 33).’ [Citation.]” (People v. McKinzie
(2012) 54 Cal.4th 1302, 1353, italics in original, reversed on other grounds in People v.
Scott (2015) 61 Cal.4th 363, 391, fn. 3; People v. Bryant, Smith and Wheeler (2014) 60
Cal.4th 335, 429.)
In Henley, supra, 72 Cal.App.4th 555, the defendant pleaded no contest to drug
charges, and it was alleged he had one prior strike conviction. The prior conviction was
for evading a police officer and causing great bodily injury to another (Veh. Code,
§ 2800.3). (Id. at pp. 558–559.) The record of the prior conviction established that the
defendant had been driving a motorcycle with a passenger. He engaged in a high speed
chase with the police, ran a stop sign, and crashed into another vehicle. His passenger
suffered serious injuries, and was identified as the victim in the charged offense of
evading an officer and causing great bodily injury to another. The passenger was not
jointly charged with the offense. (Id. at pp. 560–562.)
Henley held the trial court improperly placed the burden of proof on the defendant
to establish his prior conviction was not a serious felony and the victim was an
accomplice. (Henley, supra, 72 Cal.App.4th at pp. 562, 568–569.) Henley further held
there was insufficient evidence that the defendant personally inflicted great bodily injury
on a person “other than an accomplice.” (Id. at p. 562.)
In contrast to the circumstances in Henley, there is clearly substantial evidence to
support the court’s finding that defendant’s Illinois conviction for aggravated battery
constitutes a serious felony. The record of conviction establishes that defendant was
charged with beating and stomping Mr. Strouss, the victim of the 1987 offense, and
inflicted serious injuries to his head and brain. The information charged defendant with
this single felony, and did not include any codefendants. The court set bail subject to the
condition that defendant could not have any contact with the victim. Defendant entered a
“blind plea,” which is defined in Illinois as a plea to the charged offense without any
22.
benefits. The parties stipulated to the physician’s statement that the victim suffered
serious injuries as a result of the aggravated battery. There is thus substantial evidence
that Mr. Strouss was not “liable to prosecution for the identical offense charged against
the defendant” (§ 1111), or that Mr. Strouss promoted defendant’s commission of
aggravated battery with knowledge and the intent to assist “in the commission of the
target crime,” i.e., his own beating. (People v. McKinzie, supra, 54 Cal.4th at p. 1353.)
DISPOSITION
The judgment is affirmed.
_____________________
POOCHIGIAN, J.
WE CONCUR:
_______________________
HILL, P.J.
_______________________
MEEHAN, J.