P. v. Dutertre

Filed 9/29/06 P. v. Dutertre CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County, Joan Comparet-Cassani, Judge. Affirmed in part; reversed and remanded in part.

Catherine Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *

Rene Dutertre was convicted of felony possession of narcotics (count 1) and misdemeanor possession of drug-smoking paraphernalia (count 2), with one prior “strike” conviction under the “Three Strikes” law. (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i).)^[1] The evidence at trial showed that the police found an unused cocaine pipe in appellant’s pocket during a patdown search, drove him to the station in a patrol car, and found two rocks of cocaine on the seat where he had been sitting. At bifurcated proceedings, the trial court found that appellant’s prior conviction was true and qualified as a strike under the Three Strikes law. The prior conviction is a 1980 conviction in Texas for rape. Appellant was sentenced to six years in prison, based on the midterm of three years for drug possession, doubled for the strike. He received a concurrent sentence on count 2.

Appellant contends that there is insufficient evidence that the Texas prior conviction qualifies as a strike under the Three Strikes law. We reverse his conviction solely as to the prior conviction, and remand it for retrial.

For an out-of-state prior felony conviction to qualify as a strike, it must be pled and proven beyond a reasonable doubt. (People v. Purata (1996) 42 Cal.App.4th 489, 493 (Purata).) The appellate court’s function “is to review the record in the light most favorable to the judgment to determine whether there is substantial evidence to support the [trial court’s] finding.” (Id. at p. 496.)

To be a strike, a prior conviction must be either a violent felony, as defined in subdivision (c) of section 667.5, or a serious felony, as defined in subdivision (c) of section 1192.7. (§§ 1170.12, subd. (b)(1), 667, subd. (d)(1).) The crime of “rape” is specifically named as a serious felony. (§ 1192.7, subd. (c)(3).)

Because it is from another state, there is a further requirement for the prior conviction here. A prior conviction from another jurisdiction must “include[] all of the elements of the particular felony as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.” (§§ 1170.12, subd. (b)(2), 667, subd. (d)(2).) The reviewing court compares the elements of the felony in the other jurisdiction with the elements of the crime in California. (Purata, supra, 42 Cal.App.4th at p. 496.) If the record does not disclose the facts of the prior offense, the reviewing court must presume that the prior conviction was for the least offense punishable under the law of the foreign jurisdiction. (People v. Rodriguez (1998) 17 Cal.4th 253, 261-263; People v. Jenkins (2006) 140 Cal.App.4th 805, 810.)

The problem in this case is that the facts of the prior conviction are unknown, and the official documents from Texas identify the crime as “rape,” without specifying a particular section of the Texas Penal Code. Appellant maintains that we must dismiss or reverse the prior conviction allegation, as the failure to specify the particular rape statute means that the nature and elements of the prior conviction are unknown. Respondent counters that appellant’s 1980 Texas rape conviction qualifies as a strike when the elements of the respective statutes are compared. Respondent further maintains that, should this court find the evidence on the prior conviction to be deficient, the remedy is to reverse for retrial of the prior conviction, since double jeopardy protections do not apply in this context. (People v. Monge (1997) 16 Cal.4th 826, 845.) Analysis shows that reversal for retrial of the prior conviction is the appropriate course.

In California, section 261 defines the crime of “rape” as “an act of sexual intercourse accomplished with a person not the spouse of the perpetrator,” under a series of specified circumstances. Those circumstances include where the person is incapable of giving legal consent due to mental disorder or developmental or physical disability (subd. (a)(1)), where the rape is accomplished by means of force or fear (subd. (a)(2)), where the person is prevented from resisting due to intoxication (subd. (a)(3)), where the person is unconscious (subd. (a)(4)), where the person is induced by fraud to believe the rapist is the person’s spouse (subd. (a)(5)), where threat of future retaliation is used (subd. (a)(6)), or where the threat is to use official authority to incarcerate, arrest or deport the victim or another (subd. (a)(7)).

As to the prior conviction, the felony information alleged that appellant was convicted of “rape” on December 7, 1979, in the District Court of Harris County, Texas. The documentary evidence presented by the People consists of an affidavit of authenticity, photos of appellant, the sentence order and judgment from the Harris County District Court, and fingerprint cards from Texas and the local police department here. The original charge is not shown. The documents indicate that in 1980, the Texas jury found appellant guilty of “rape,” and he received a sentence of two to 15 years in prison. They also show that the crime itself occurred on December 7, 1979. The trial court also heard testimony from a fingerprint expert, before finding the prior conviction to be true.

Appellant argues that the Texas conviction might have been either for the crime of “rape” (former Tex. Penal Code Ann. § 21.02, repealed by Acts 1983, 68th leg., ch. 997, §§ 12, eff. Sept. 1, 1983 (former section 21.02)), or the crime of “rape of a child,” as defined by former section 21.09 of the Texas Penal Code. The equivalent California statute to former section 21.09 is section 261.5. Appellant maintains that if the crime was “rape of a child,” it was not a serious or violent felony, as section 261.5 is not included in the lists of serious or violent felonies. We need not resolve this issue, as the prior conviction must be reversed, for reasons we discuss, post.

Appellant alternatively argues that, even if this court is convinced that his Texas crime was “rape” rather than “rape of a child,” the lack of specificity about his Texas rape conviction means that he may have been convicted of rape of a victim with a mental disability or defect, which, he maintains, was easier to prove in Texas than in California.

Texas’s former section 21.02 stated, “(a) A person commits an offense if he has sexual intercourse with a female not his wife without the female’s consent.

(b) The intercourse is without the female’s consent under one or more of the following circumstances . . . .” The ensuing list of circumstances is generally similar to those in California’s rape statute, section 261. Both lists include a circumstance for rape of a victim with a mental disability or defect.

The parties dispute whether there are differences between the elements of this form of rape in Texas and in California, which made it easier to prove in Texas than in California. Respondent maintains that appellant is confusing “actual consent“ and “legal consent.” (See People v. Giardino (2000) 82 Cal.App.4th 454, 460.)

We need not resolve this issue, either. We do not know the subdivision of the Texas rape statute that appellant violated. Nobody suggested these issues when the trial court was ruling on the prior conviction. The circumstances justify reversing appellant’s conviction solely as to the prior conviction, so that it can be retried. (People v. Rodriguez, supra, 17 Cal.4th at pp. 261-262; People v. Jenkins, supra, 140 Cal.App.4th 805, 816.) On retrial, “the trier of fact may look to the entire record of the conviction.” (People v. Guerrero (1988) 44 Cal.3d 343, 345.)

DISPOSITION

Appellant’s prior conviction for rape in Texas is reversed and remanded for retrial. In all other respects, his conviction is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

COOPER, P. J.

BOLAND, J.

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^[1] Subsequent code references are to the Penal Code unless otherwise stated.