Filed 1/22/19 P. v. Chavez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. John M. Monterosso, Judge. Affirmed.

Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found defendant and appellant Julio Chavez, Jr., guilty of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).)[1] It further found that he personally inflicted great bodily injury on the victim. (§§ 12022.7, subd. (a), 1197, subd. (c)(8).) In a bifurcated trial, a trial court found true the allegations that defendant suffered a conviction out of Texas on April 15, 2011, for aggravated assault with a deadly weapon, which qualified as a serious prior felony conviction (§ 667, subd. (a)) and a prior strike conviction (§§ 1170.12, subd. (c)(1), 667, subds. (c) & (e)(1)). Defendant unsuccessfully moved to strike the prior conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The court sentenced defendant to a total term of 16 years in state prison, consisting of the upper term of four years, doubled pursuant to the prior strike conviction, plus three years on the great bodily injury enhancement and five years on the prior serious felony conviction enhancement.

On appeal, defendant contends that his Texas assault conviction did not qualify as a California prior strike conviction or serious felony. In the alternative, he argues that the court abused its discretion in failing to strike his prior strike conviction. Defendant also contends this court should remand the matter for resentencing pursuant to Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393). We affirm.

FACTUAL BACKGROUND

At approximately 10:00 p.m. on April 7, 2015, the victim went to a casino to go dancing and play the slot machines. Soon thereafter, defendant introduced himself to her and asked her to dance. They ended up dancing, talking, and drinking alcohol until around 1:30 a.m. Throughout the night, defendant held her hand and asked her several times for a kiss. She wanted to be nice to him, but did not want to kiss him. He also put his hand on the inside of the victim’s leg two times, but she moved his hand. When the dance club closed, the victim wanted to gamble by herself, but defendant stayed with her and showed her a slot machine. When she decided to leave, he offered to walk her to her car. When they reached her car, she got in, and he got in on the passenger side. They sat in the car, and she played him a few songs. Then she drove him to his car, dropped him off, thinking that was the end of their night together, and drove home.

When the victim arrived at her home about 20 minutes later, she got out of her car and noticed defendant behind her in the driveway. She screamed and asked what he was doing there. He said he wanted to know her and asked who lived with her. He then asked her to help him find his cell phone, which he said he had thrown in the back of his car. The victim walked over, and he opened the back door of his SUV. She did not find the phone, and he suggested it was in the backseat. He opened the backseat door, and there was a bad odor emanating from the seats, so the victim said she needed to go. Defendant said, “So you won’t kiss me?” She refused and started walking up the driveway. The victim then felt something hit her head with such force that she thought a tree fell on her. She felt pain, like she was dying. She fell on her knees and screamed for help. The victim touched her head and felt a hole there, and she saw blood spraying everywhere. She then touched the back of her neck and felt something hit her hand. She turned around and saw defendant with a crossbar and realized he was hitting her. She screamed and then saw him walk away.

ANALYSIS

I. Defendant’s Texas Conviction Qualified as a Prior Strike and Serious Felony in California

Defendant argues there was insufficient evidence to support the court’s finding that his Texas conviction for aggravated assault with a deadly weapon qualified as a serious felony and strike under California law, since it is possible to commit assault in Texas with a “lower” mental state than required in California. We conclude the court properly determined that his prior Texas conviction constituted a serious felony conviction for purposes of the relevant California sentencing provisions.

A. Procedural Background

The court held a hearing on the prior conviction allegations, and the prosecutor offered into evidence a certified prior conviction packet from El Paso, Texas (exhibit No. 75). The prosecutor also noted that, during defendant’s testimony at trial, he admitted he had a prior felony conviction for assault with a deadly weapon out of Texas. Exhibit No. 75 included an indictment of defendant in El Paso County, Texas charging him with aggravated assault with a deadly weapon. Defendant entered his guilty plea to the indictment, which alleged that on October 4, 2008, he “did then and there intentionally, knowingly, and recklessly cause bodily injury to [the victim] by striking [him] about the head with a bat, and the said Defendant did then and there use and exhibit a deadly weapon, during the commission of said assault, to-wit: a bat, that in the manner of its use and intended use was capable of causing death and serious bodily injury. [¶] And it is further presented that the said Defendant used and exhibited a deadly weapon, to-wit: a bat, during the commission of and immediate flight from said offense.” The Texas court found that defendant’s guilty plea was made freely and voluntarily and accepted it. The record shows that the court ordered deferred adjudication and placed him on community supervision. The “Judgment Adjudicating Guilt” described defendant’s conviction offense as aggravated assault with a deadly weapon under Texas Penal Code (TPC) section 22.02(a)(2) and reflected the “findings on deadly weapon” as “a bat.”

The prosecutor asked the court to consider the evidence of defendant’s testimony that he suffered a prior felony conviction for assault with a deadly weapon in Texas, as well as the exhibit submitted by the People. The prosecutor noted the indictment stated that defendant intentionally, knowingly, and recklessly caused bodily injury to the victim by striking him on the head with a bat, and defendant used and exhibited a deadly weapon (a bat) during the commission of the assault, and was capable of causing death and serious bodily injury.

The prosecutor also requested the court to take judicial notice of TPC section 22.02(a)(2). Defense counsel agreed that the court should take judicial notice of TPC section 22.02(a)(2), along with section 22.01, which was referenced in section 22.02. The court agreed.

Defense counsel proceeded to discuss the issue of whether or not the Texas offense would qualify as a strike under California law. He noted that there was no factual basis taken for the prior conviction, and defendant simply admitted the charge as alleged. He argued that, under the least adjudicated elements test, the offense would not be deemed a strike. He asserted that the Texas statute did not require the assault to be willful or intentional or knowing; rather, it allowed for the conduct to be a reckless action.

After reviewing the statutes and hearing argument from counsel, the court proceeded to compare the Texas and California statutes. The court noted that defendant was charged under TPC section 22.01(a)(1), which provides that a person commits assault if he intentionally, knowingly, or recklessly causes bodily injury to another. In the court’s view, the Texas assault statute was far more narrow than the California assault statute, since a person is required to cause bodily injury to another, which is not required in California. The court noted that the Texas statute also lists three separate mental states that can form the basis of the offense. The court found that “intentionally” was specific intent, and “knowingly” was general intent. The court stated that these terms required more than the California statute, under which assault is a general intent crime. The court further noted that the Texas statute did not define the meaning of “recklessly.” The court then stated that, under the California assault statute, one “simply has to commit an act with a deadly weapon and do so willfully.” In other words, one “simply did the act,” not necessarily “intending to commit any certain result.” Thus, “[w]hen the person did the act, he was aware of facts that would lead a reasonable person to realize that the act by its nature would directly and probably result in the application of force to someone.” The court found that such definition was “more than knowingly,” and was the equivalent of what reckless would be in the Texas Code.

The court concluded that the California statute was much broader than the Texas statute, and if one were to commit an assault using a deadly weapon under TPC 22.01, he inevitably would be committing an assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1). Thus, it found that defendant’s assault conviction from Texas qualified as a strike and prior serious felony conviction.

B. Relevant Law

Under California’s three strikes law, a defendant’s criminal sentence must be increased when the “defendant has been convicted of one or more prior serious or violent felonies, or ‘strikes.’ ” (People v. Saez (2015) 237 Cal.App.4th 1177, 1193.) “Whether a crime qualifies as a serious felony is determined by section 1192.7, subdivision (c) . . . which lists and describes . . . qualifying crimes.” (People v. Warner (2006) 39 Cal.4th 548, 552 (Warner).) Assault with a deadly weapon, in violation of section 245, is on the list. (§ 1192.7, subd. (31).)

“Under our sentencing laws, foreign convictions may qualify as serious felonies, with all the attendant consequences for sentencing, if they satisfy certain conditions. For a prior felony conviction from another jurisdiction to support a serious-felony sentence enhancement, the out-of-state crime must ‘include[] all of the elements of any serious felony’ in California. [Citation.] For an out-of-state conviction to render a criminal offender eligible for sentencing under the three strikes law [citations], the foreign crime (1) must be such that, ‘if committed in California, [it would be] punishable by imprisonment in the state prison’ [citations], and (2) must ‘include[] all of the elements of the particular felony as defined in’ section 1192.7[, subdivision] (c).” (Warner, supra, 39 Cal.4th at pp. 552-553.) “ ‘[W]hen 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. Rodriguez (2004) 122 Cal.App.4th 121, 129 (Rodriguez).)

“ ‘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 [based on a conviction in another jurisdiction], 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.’ [Citation.] In making this determination, we review the record in the light most favorable to the trial court’s findings. [Citation.]” (Rodriguez, supra, 122 Cal.App.4th at p. 129.)

B. Defendant’s Prior Conviction Was a Serious Felony and Strike Under California Law

In 2011, defendant pled guilty in Texas to a charge of aggravated assault with a deadly weapon, in that, on October 4, 2008, he “did then and there intentionally, knowingly, and recklessly cause bodily injury to [the victim] by striking [him] about the head with a bat, and the said Defendant did then and there use and exhibit a deadly weapon, during the commission of said assault, to-wit: a bat, that in the manner of its use and intended use was capable of causing death and serious bodily injury. [¶] And it is further presented that the said Defendant used and exhibited a deadly weapon, to-wit: a bat, during the commission of and immediate flight from said offense.” This offense was in violation of TPC section 22.02. The question is whether defendant’s Texas conviction of aggravated assault with a deadly weapon necessarily involved conduct that would qualify as assault with a deadly weapon under California law.

In California, “[a]ny person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm shall be punished.” (§ 245, subd. (a)(1).) The elements of assault with a deadly weapon are: “(1) That defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person; or [¶] (1a-b) That defendant did an act that by its nature would directly and probably result in the application of force to a person, and the force used was likely to produce great bodily injury; and [¶] (2) Defendant did the act willfully; and [¶] (3) When defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and [¶] (4) When defendant acted, he had the present ability to apply force likely to produce great bodily injury or with a deadly weapon.” (People v. Golde (2008) 163 Cal.App.4th 101, 121 (Golde); see CALCRIM No. 875.)

In Texas, a person commits an assault if he “intentionally, knowingly, or recklessly causes bodily injury to another.” (TPC, § 22.01, subd. (a)(1).) A person commits an aggravated assault if he commits assault as defined in TPC section 22.01, and he either causes serious bodily injury to another, or “uses or exhibits a deadly weapon during the commission of the assault.” (TPC, § 22.02, subd. (a).)

The Texas statute includes all of the elements of California’s Penal Code section 245, subdivision (a)(1). TPC section 22.02 applies when a person intentionally, knowingly, or recklessly causes bodily injury to another, using a deadly weapon. Such conduct would constitute a serious felony under California Penal Code section 245, subdivision (a)(1), which simply requires a defendant to commit an act with a deadly weapon and do so willfully. Also, when the person commits the act, he must be aware of facts “that would lead a reasonable person to realize that” the nature of his act would probably result in the application of force, and he must have the ability to apply force with a deadly weapon. (Golde, supra, 163 Cal.App.4th at p. 121.) As noted by the trial court here, the Texas statute requires the defendant to actually cause bodily injury, whereas the California statute has no such requirement. In other words, the Texas statute under which defendant was convicted is more narrow than California’s assault statute and could encompass conduct considered assault with a deadly weapon in California.

Defendant’s specific claim is that the Texas conviction does not qualify as a serious felony or strike offense under California law because it is possible to violate TPC 22.02, subdivision (a)(2), with a “lower” mental state than required under the California statute. The Texas statute states that a person commits an assault if he “intentionally, knowingly, or recklessly” causes bodily injury. (TPC, § 22.01, subd. (a)(1).) He claims that “recklessly” under the Texas statute is somehow a lesser mental state than “willfully” under the California statute. In other words, he argues that the Texas statute is broader than the California statute, since it does not require willful conduct, but only reckless conduct.

Defendant appears to be differentiating reckless conduct from intentional and knowing conduct, in order to make his claim. However, the Texas Court of Criminal Appeals has held that the three mental states are essentially the same, in the context of aggravated assault: “The legislature was apparently neutral about which of these three mental states accompanied the forbidden conduct because all three culpable mental states are listed together in a single phrase within a single subsection of the statute. There is no indication that the legislature intended for an ‘intentional’ bodily injury assault to be a separate crime from a ‘knowing’ bodily injury assault or that both of those differ from a ‘reckless’ bodily injury assault. All three culpable mental states are strung together in a single phrase within a single subsection of the statute. All result in the same punishment. They are conceptually equivalent.” (Landrian v. State (Tex.Crim.App. 2008) 268 S.W.3d 532, 537, fn. omitted.) Defendant does not argue that an assault committed intentionally or knowingly is not also done willfully.

Moreover, under Texas law, “[a] person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.” (TPC, § 6.03, subd. (c).) Under this definition, one acts recklessly when he is aware of, but consciously disregards, a risk that something will occur. Willful conduct in California simply means having a “willingness to commit the act.” (Pen. Code, § 7, subd. (1).) The trial court here properly determined that a person who acts recklessly is still acting willfully.

We further note the record shows that defendant pled guilty in Texas to a charge of aggravated assault with a deadly weapon, in that he “did . . . intentionally, knowingly, and recklessly cause bodily injury to [the victim] by striking [him] about the head with a bat, and the said Defendant did then and there use and exhibit a deadly weapon, during the commission of said assault.” (Italics added.) In entering this guilty plea, defendant necessarily admitted that he intentionally and knowingly committed an assault with a deadly weapon. Thus, the simple fact of the Texas conviction establishes the elements of assault with a deadly weapon in California.

We conclude the trial court properly determined that defendant’s prior Texas aggravated assault conviction constituted a serious felony conviction for the purpose of the relevant California sentencing provisions.

II. The Trial Court Properly Denied the Romero Motion

Defendant contends that the trial court abused its discretion in declining to dismiss his prior strike conviction under Romero. He claims that his criminal history is minor, he never served a prison sentence prior to the instant case, he was gainfully employed and worked to support his four children, and he was intoxicated when the current offense occurred, so his judgment was impaired. We find no abuse of discretion.

A. Background

Prior to sentencing, defendant filed a Romero motion, requesting the court to dismiss his prior strike conviction because: (1) he consumed alcohol on the night of the instant offense and thus suffered from a mental or physical condition that significantly reduced his culpability for the instant crime; (2) the punishment under the three strikes law was disproportionate to his criminal history; and (3) he was outside the spirit of the three strikes law because his childhood was marred by sexual abuse, he quit high school to work and provide for his young family, and he has spent the majority of his life as a productive member of society. He further asserted that there were no substantial aggravating factors.

The People filed an opposition, asserting that defendant was a recidivist who clearly fell within the spirit of the three strikes law. He committed numerous crimes in Texas, beginning in 2005. Furthermore, his current offense was for a serious and violent felony (assault with a deadly weapon).

The court held a hearing on the Romero motion, and the parties submitted on their written briefs, which the court reviewed. The court stated that defendant’s criminal history was rather lengthy, although most of his offenses were relatively minor. The court gave great weight to the fact that defendant had a recent violent conviction from out of state. It stated that the conduct in the instant case was extremely violent and vicious. Thus, defendant’s conduct was escalating in nature. The court found nothing in his history that would suggest he had positive prospects for the future. It concluded that defendant did not fall outside the spirit of the three strikes law and denied the motion.

B. The Court Properly Exercised Its Discretion

In Romero, the Supreme Court held that a trial court has discretion to dismiss prior strike conviction allegations under section 1385. (Romero, supra, 13 Cal.4th at pp. 529-530.) In People v. Williams (1998) 17 Cal.4th 148 (Williams), the court identified a number of specific factors a trial court should consider when exercising its discretion. “[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to Penal Code section 1385[, subdivision] (a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (Id. at p. 161.)

“[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion.” (People v. Carmony (2004) 33 Cal.4th 367, 375.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.) “Because the circumstances must be ‘extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (Id. at p. 378.)

The circumstances here were far from extraordinary, and the trial court properly applied the Williams factors to this case in denying defendant’s motion. The court reviewed his background and criminal history in detail. Defendant’s criminal history dates back to 1998, when he committed assault causing bodily injury as a juvenile. He also had numerous adult convictions in Texas, including driving while intoxicated with a child under 15 years of age, aggravated assault with a deadly weapon (the prior strike conviction), violation of a protective order, forgery, possession of a controlled substance, failure to have a driver’s license, and failure to maintain financial responsibility. His criminal history also includes three state prison terms, a jail term, hundreds of hours of community service, and the imposition of fines and fees, all of which apparently did nothing to deter him from committing further crimes. It is clear from the record that prior rehabilitative efforts have been unsuccessful. Furthermore, as the court noted, although defendant’s past offenses were mostly minor, his criminal conduct escalated to his violent conviction from Texas and his current offense, which was extremely violent and caused tremendous pain to the victim. Moreover, we agree with the court that there was nothing in defendant’s history to suggest he was on the right path or had prospects for the future.

In light of the court’s explanation of its reasons for declining to strike defendant’s prior strike conviction, we do not find the decision to be arbitrary or irrational. The record clearly shows that the court was aware of its discretion and the applicable factors a court must consider in dismissing a prior strike, and that it appropriately applied the factors. Thus, we cannot say that the court abused its discretion when it declined to dismiss defendant’s prior strike conviction.

III. Remand is Unnecessary

Defendant contends that, in light of Senate Bill 1393, the matter must be remanded for resentencing so the trial court may exercise its discretion to dismiss the prior serious felony conviction enhancement. (§ 667, subd. (a).) We see no need for remand.

On September 30, 2018, the Governor signed Senate Bill 1393 which, effective January 1, 2019, amends sections 667, subdivision (a), and 1385, subdivision (b) (hereafter § 1385(b)), to give courts discretion to dismiss or strike a prior serious felony conviction for sentencing purposes. (People v. Garcia (2018) 28 Cal.App.5th 961, 971 (Garcia).) Defendant claims Senate Bill 1393 applies retroactively to all cases or judgments of conviction in which a five-year term was imposed at sentencing, based on a prior serious felony conviction, provided the judgment was not final when Senate Bill 1393 became effective on January 1, 2019. The People concede, and we agree, that Senate Bill 1393 applies to defendant. However, the People argue that remand is unwarranted since the trial court’s statements on the record clearly demonstrate that it would not have dismissed the enhancement, even if it had the discretion. We agree.

“When an amendatory statute either lessens the punishment for a crime or, as Senate Bill 1393 does, ‘ “vests in the trial court discretion to impose either the same penalty as under the former law or a lesser penalty,” ’ it is reasonable for courts to infer, absent evidence to the contrary and as a matter of statutory construction, that the Legislature intended the amendatory statute to retroactively apply to the fullest extent constitutionally permissible—that is, to all cases not final when the statute becomes effective.” (Garcia, supra, 28 Cal.App.5th at p. 972.) Thus, as the People concede, if defendant’s case was not final on January 1, 2019, Senate Bill 1393 applies retroactively to defendant’s judgment. (See Ibid.)

However, remand for resentencing is unnecessary here because the record clearly indicates that the trial could would not have dismissed the prior serious felony enhancement, in any event. As defendant points out, Senate Bill 1393 is similar to Senate Bill No. 620. Senate Bill No. 620 amended section 12022.53, subdivision (h), to provide that “ ‘[t]he court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section.’ ” (People v. McDaniels (2018) 22 Cal.App.5th 420, 424 (McDaniels).) Similarly, Senate Bill 1393 amends section 667 to provide that “[t]he prosecuting attorney may move to dismiss or strike a prior serious or violent felony allegation in the furtherance of justice pursuant to Section 1385, . . .” (§ 667, subd. (f)(1); see Garcia, supra, 28 Cal.App.5th at p. 971.) In McDaniels, the court held that a remand for resentencing under Senate Bill 620 was required “unless the record show[ed] that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken a firearm enhancement.” (McDaniels, supra, 22 Cal.App.5th at p. 425.) In other words, “if ‘ “the record shows that the trial court would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required.” ’ ” (Ibid.)

Here, as discussed ante, the court denied defendant’s Romero motion. (See § II, ante.) In doing so, the court properly exercised its discretion under section 1385 and determined it was not in the interest of justice to dismiss defendant’s prior strike. In other words, the trial court has already exercised its discretion under section 1385. Given the trial court’s comments when it denied the Romero motion, there is no reason to believe it would exercise its discretion under section 1385 any differently to strike the section 667 enhancement. The court noted defendant’s criminal history and described his current conduct as “extremely violent and vicious.” The court concluded that “[t]here is nothing in the defendant’s history and his escalating level of violence that would suggest that he is on the right path or has positive prospects for the future, but rather he has gone down a road of continuing and escalating violence. So the defendant not only does not fall outside the spirit of the Three Strikes law, he’s why the Three Strikes law was written.”

We further note the court imposed the upper term on defendant’s conviction, commenting that his conduct was vicious and cowardly, and that “the aggravation [was] extremely heavy in this case.” In view of its refusal to dismiss the prior strike, and the imposition of the upper term, the court evidently believed defendant deserved the maximum time possible.

In sum, the record clearly indicates the trial court would not have reduced defendant’s sentence under section 1385, if it had the discretion to do so pursuant to Senate Bill 1393. Therefore, remand would be an idle act and is not required. (See McDaniels, supra, 22 Cal.App.5th at p. 425.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

MILLER

J.

SLOUGH

J.