P. v. Hale

Filed 5/1/07 P. v. Hale CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Janice M. McIntyre, Judge. (Retired judge of the Riverside Sup. Ct., assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed in part; reversed in part, remanded with directions.

Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Janelle Marie Boustany, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted Anthony Hale of unlawfully taking/driving a vehicle (Veh. Code, 10851, subd. (a)). In bifurcated proceedings, the jury found that Hale had a prior conviction for which he had served a prison term (Pen. Code, 667.5, subd. (b)) and two strike priors. (Pen. Code, 667, subds. (c) & (e)(2)(A).) He was sentenced to prison for 25 years to life and appeals, claiming the trial court erroneously denied his motion for a mistrial or to strike the victims testimony, misinstructed the jury and failed to poll it. He also contends that the evidence was insufficient to support the verdict and the true finding as to one of his strike priors and the prosecutor committed misconduct. We reject all his contentions, save the one concerning the insufficiency of the evidence of the strike prior. We agree with this latter contention, and, therefore, reverse the true finding and defendants sentence, remand the matter for retrial of the strike allegation, and otherwise affirm.

Facts

The unemployed 44-year-old defendant moved into his retired mothers Moreno Valley home without an invitation while she was visiting one of her other sons in Ohio in the early summer of 2004. On October 15, 2004, defendants mother (hereinafter, the victim) told defendant that she was going to go to the home of a friend to help the latter, who was recovering from cancer surgery, and she did not expect to be back until the following day. Shortly after the victim left for her friends house, defendant took her car, without her permission, from her garage and drove to Los Angeles, and probably Long Beach, making two stops in Moreno Valley, before being stopped by the police. More facts will be disclosed in connection with the issues discussed below.

Issues and Discussion

1. Motion for Mistrial/to Strike Victims Testimony^[1]

Before trial began, defense counsel pointed out to the court that despite being advised not to mention defendants drug use and/or addiction, the victim had done so twice during the prior trial.^[2] He requested the victim be re-admonished before testifying in the soon-to-begin trial. The prosecutor stated that she had already advised the victim, and planned to repeat the advisement before the victim took the stand.^[3] The trial court said it, too, would advise the victim. The record before us does not state whether this was done.

Very early in cross-examination of the victim, defense counsel asked her if defendant had his own room in her home and she said that he did not, that he just slept wherever. Counsel then impeached her with her contrary testimony at the preliminary hearing, calling her by her first name twice in the process. She then asked counsel what

difference it made, which prompted him to ask her what her attitude was towards testifying. She replied that she did not like defense counsel and did not appreciate him calling her by her first name, which she considered disrespectful in light of the fact that she was 69 years old. Upon further prodding by defense counsel as to the nature of her unhappiness, she explained that after the crime she had moved out of state to get away from this mess and had started a new life elsewhere, was doing fine, and was tired of being brought back to California for the proceedings involving this case. After defense counsel pointed out that the victim appeared to be having problems with her memory (primarily, it seems, because she could not recall what she testified to at the prior trial and the preliminary hearing), she responded that the events happened some time ago and she had tried to forget them. She added, I have other things to do. I have a mental[ly] retarded son to take care of. I have myself to take care of. I dont have time to worry about a drug addict that comes in my house and takes my things. The trial court sustained defense counsels objection to the remark, struck it, and admonished the jury to disregard it. Outside the presence of the jury, the trial court admonished the victim not to again mention defendants drug addiction. Defense counsel moved for a mistrial, which the trial court denied.

At one point during his cross examination of the victim, defense counsel either misunderstood or misinterpreted what she had said on direct. He solicited her testimony that she was having problems with her memory and asked her if she attributed that to a psychiatric or health problem, a matter which the trial court had already ruled was without foundation. She admitted to getting emotional when angry and said she had taken Prozac to prevent becoming over emotional before and after the crime. Defense counsel asked her what the diagnosis was that triggered her taking the medication and the prosecutor successfully objected to this. She was asked about an incident during which she had accused the defendant of taking some of her nursing uniforms. Defense counsel attempted to impeach her then -- testimony that she did not argue with defendant about rice missing from her kitchen with her previous testimony that she did. There was further impeachment over whether the victim said she was so angry at defendant over the taking of her car that she was willing to go to jail for doing something illegal, like beating him with a bat. The victim then blurted out that she was tired of being made to look like she was the one who did something wrong. Defense counsel next attempted to impeach her with a statement she gave to the police officer who responded to her report of the crime that defendant never drove her cars and did not live with her. When counsel pressed her as to whether she had lied to the officer, she apparently again exploded, saying, Okay. Thats it. You guys want to put me in jail. Im tired of this. Im going. You can put me in jail. Do whatever you want. Im tired of this man sitting up here [(meaning defense counsel)] asking me questions. I havent done anything wrong. And if I have to go to jail, Ill just go to jail. Im tired of him. [] And, [to the defendant], its all your fault. []  . . .  [] Its all your fault, what youre doing to me. For his part, the defendant contradicted this last statement during his cross examination, saying, Im not the reason shes here. Im here because she called the police, and she did all of this. Thats the reason were here . . . .

After the victim made her comments, outside the presence of the jury, defense counsel asked for a mistrial or to strike her testimony. At the end of the victims testimony, the trial court denied both motions.

Defendant testified that the victim had always told him that he would never amount to anything, which hurt him. He said that the victim loses it a lot and she did something that he thought was really out of line. He implied that she threw fits and then threw him out of her house during his previous stays there whenever she got mad and she looked for things about which to make a scene even though he had done nothing wrong. He added that she was mean. He said, more than once, that she was out of her mind and had problems with perception. He said she manipulated him, played sick and used her age, was very demanding on him and treated him like a child. He described events during which she seemed to behave irrationally, including cussing him out and calling him fuckin stupid. He claimed that she was cashing his daughters social security checks even though the daughter was not living with her. He said she lied to him about the location of his children, keeping them from him. He accused her of lying to the police officer when she told him that defendant did not live with her, suggesting that she was hoping the police would kill him when they pulled him over. He added that she could not be truthful when she was emotional. He concluded by saying, My mother is something. Of course, these were the matters that were not stricken from his testimony. Defendant made many more blistering remarks about the victim that were stricken.

Defendant admitted that he took the victims car without her permission. However, his defense was that he did not intend to deprive her of her car -- that he borrowed it to do something for her.^[4] He intended to get food stamps, then groceries, and come home, but he also intentionally bought beer for himself and visited an acquaintance after getting the food stamps, never making it to the store or home before he was arrested. The jurys sole task was to determine whether when defendant took or drove the victims car, he intended to temporarily deprive her of possession.^[5] This was not a complicated issue. We cannot see how the victims comment about defendants drug addiction, which the jury was instructed to disregard, and her blaming him for the trial, which was answered in kind by him, could have influenced the jurys determination. Both defendant and the victim said prejudicial things about each other. This was not a case of the victim throwing mud at defendant, and him not throwing any back at her. The trial court did not abuse its discretion in denying the motions for mistrial, or to strike the victims testimony, the latter of which surely would have resulted in a dismissal of the charge against defendant.

2. Jury Instruction

The trial court rejected defendants request that the jury be instructed with vehicle tampering (Veh. Code, 10852) as a lesser included offense of the charged taking or driving a vehicle. As is relevant here, Vehicle Code section 10852 punishes willfully . . . tamper[ing] with any vehicle . . . without the consent of the owner. For purposes of Vehicle Code section 10852, tampering includes any act inconsistent with the ownership thereof. (People v. Anderson (1975) 15 Cal.3d 806, 810; People v. Mooney (1983) 145 Cal.App.3d 502, 505.) Defendants claim was that he took and drove the car in order to get food stamps and groceries which the victim would, along with others, consume and, thus, that he was doing something for her. This is not an act inconsistent with the victims ownership of her car. Thus, as in People v. Hicks (1983) 147 Cal.App.3d 424, if the jury believed his testimony, he would not be guilty of any crime.^[6] If it believed the prosecutions case, he was guilty of violating Vehicle Code section 10851. There was no evidentiary basis for a conviction of violating Vehicle Code section 10852.

Defendant contends that because there was evidence, presented both by the prosecution and the defense, that he did not anticipate the victim using the car during the time he had it, there was sufficient evidence to support an instruction on tampering because this evidence undermined the element of Vehicle Code section 10851 that the defendant intend to deprive the owner temporarily of possession. In fact, the evidence was undisputed that the victim had told defendant when she left her home around noon that she anticipated spending the night at her friends house and returning to her home sometime the next day. However, defendant assuming that she would not use the car while he was driving it that afternoon and evening, is not inconsistent with the intent to temporarily deprive the owner of possession, and the jury so found. During the hours defendant had the victims car, it was not only out of her possession, but it was also unavailable for her use. If her plans had changed and she wanted to drive the car or if she decided to lend it to someone else (a circumstance defendant testified had occurred five months before the crime) or if she just wanted to get something she had left inside it, it would not have been available to her. This is deprivation of ownership.^[7]

3. Insufficiency of the Evidence

Defendants contention that there was insufficient evidence that he had the specific intent to deprive her temporarily of possession has already been addressed,

ante.

4. Prosecutorial Misconduct

a. Doyle Error

During cross examination of the officer who stopped and eventually arrested defendant, defense counsel had the former testify that during the stop, defendant said that the car belonged to the victim. During redirect examination following this, the prosecutor reminded the officer of defendants statement. The officer added that defendant had also said, I cant believe she reported it stolen. The prosecutor then asked the officer if defendant had said anything to him about running an errand, going to the store to get groceries or seasoning salt or going to Los Angeles to get food stamps. The officer said defendant had not. Later, outside the presence of the jury, defense counsel asserted that these questions constituted Doyle^[8]error because at some point which counsel did not specify during the stop, defendant invoked his right to silence. Counsel moved that the testimony be stricken and for a mistrial. The prosecutor responded that defense counsel had elicited defendants statement about the car belonging to the victim, to which the officer added defendants assertion that he could not believe the victim reported it stolen. If there was an innocent explanation for defendants use of the car, it would have been entirely appropriate for him to offer it at that point. But he did not. The trial court denied the motion for mistrial and did not strike the testimony. When the prosecutor addressed this matter while arguing to the jury, defendant again objected and his objection was overruled.

Contrary to defendants contention, the prosecutor soliciting the officers testimony that defendant did not offer to him the explanations for his use of the car he made at trial and commenting on this during argument did not constitute Doyle error. Doyle holds that the prosecution violates due process if it uses the postarrest silence of a suspect who wasgiven Miranda warnings to impeach an exculpatory explanation subsequently offered at trial. (People v. Evans (1994) 25 Cal.App.4th 358, 367, italics added.) Clearly, the prosecutors questions were directed to that point in time when defendant expressed his surprise that the victim had reported the car as stolen.^[9] Based on defendants testimony, this statement occurred almost immediately after defendant had been stopped.^[10] Certainly, there is nothing in the record suggesting that it occurred either

after defendant had been arrested or after he had been given his Miranda rights.^[11]

b. Questioning Defendant

During his direct examination, defendant had admitted being convicted in the past of false imprisonment and assault causing great bodily injury. During cross examination, the prosecutor asked defendant if when he came out of his friends house,^[12]he saw the police car he had seen before he had gone inside. He said that he did not when he first came out, but as he approached the victims car, he looked around and saw a police car. The prosecutor asked defendant if he was nervous and that was why he was looking around. Defendant said there was nothing to be nervous about other than being cautious about what goes on in the streets. He then asked the prosecutor, who was female, whether she was not equally cautious, due to the potential presence of muggers and robbers. The prosecutor asked defendant if people assaulted and falsely imprison other people. Defendant agreed that they did. Defense counsel made an objection on the basis that the questions were argumentative and irrelevant, which the trial court sustained. Defense counsel contended the questions were misconduct and he moved that the jury be admonished. The trial court ruled that an admonishment was unnecessary. We agree that the questions were irrelevant and something of a low blow by the prosecutor, but considering the amount of mud that was flung by defendant and the victim in this trial, hardly prejudicial to the point of requiring reversal, particularly because the trial court sustained defense counsels objection to them.

c. Comments During Argument

Finally, the prosecutors reference to defendant during argument to the jury as a deadbeat kid (to which the trial court overruled defense counsels objection) and her contrasting the hardworking victim with defendant, whom, she said, took advantage of and manipulated the victim, were based on the evidence and were within the acceptable rhetoric of counsel during argument. (People v. Maury (2003) 30 Cal.4th 342, 418.)

5. Polling of the Jury

After the clerk read the verdict, and asked the jury if this was its verdict, defendant jumped out of his chair and interrupted the proceedings, saying he was going to prison for 25 years to life, which, he asserted, was the rest of his life, and he denied guilt. He asked the jurors if they had children and asserted that his life was over. He had to be restrained by two deputy sheriffs in handcuffs at which time [the trial court] excused the jury to be brought back the next day for . . . trial on the priors. As soon as the jury left the courtroom, the trial court commented that it had forgotten to poll the jury and would do that the following day. However, it did not.

During opening statement to the jury at the subsequent trial of the priors, defense counsel said that the evidence the People will be producing . . . does not prove . . . that [defendant] should be convicted of the Three Strikes Law . . . . The trial court sustained the prosecutors objection on the basis that it called for the jury to consider punishment.

After the jury began deliberations concerning the priors, it sent the trial court a note, in which the foreperson stated that he/she and three other jurors concluded that the prosecution in the trial of the charged offense had not proved specific intent beyond a reasonable doubt and, therefore, defendant was not guilty, but that they had been pressured to return a guilty verdict. When the court discussed this with trial counsel, defense counsel conceded that the record did not reflect a request by him that the jury be polled, although he insisted that he had made one off the record. He requested the jury to be polled and for a mistrial based on the allegation made in the note mentioned above. The trial court ruled that defendant had waived having the jury polled at the time of their verdict because there had been no request in open court, although the matter may have been brought up during an informal discussion in chambers.^[13] The court further found that it was defendants own disruptive behavior which caused the trial court not to follow its normal procedure of having the jury polled. However, the clerk had asked the jury if that was its verdict, and no member stated it was not. Thereafter, the deputy district attorney who stood in for the prosecutor at the taking of the verdict, testified that he heard no verbal dissent nor did he see any juror raise his or her hand in opposition when the clerk read the verdict, he saw jurors starting to nod, and the beginnings of a yeah which was interrupted by the defendants outburst. When the jury returned to the courtroom, the trial court instructed it that the verdict had already been recorded and it was a legal finality.

Relying on People v. Bento (1998) 65 Cal.App.4th 179, defendant contends that a trial court retains jurisdiction to reconvene and poll a jury which has not been exposed to new evidence concerning guilt. However, this jury had been exposed to new evidence in the form of defendants outburst in court following the guilty verdict, his attorneys assertion at the beginning of trial of the priors that this was a Three Strikes case, and the evidence that was introduced against him during the trial of his priors. Therefore, the reasoning of Bento has no application here.

Ignoring the trial courts repeated findings that defendant had not requested the jury be polled when the verdict was rendered, he contends that the verdict was not complete when the note was sent to the court about the verdict during deliberations on the

priors. The fact that the trial court acknowledged that it had forgotten to poll the jury immediately after it left the room following defendants outburst did not mean that defendant had requested a polling. The trial court found otherwise, and the record supports its finding.

Utilizing the same faulty premise, i.e., that defendant actually did request polling, defendant asserts that the trial courts finding that he waived it is incorrect. We disagree for the same reasons stated above. Defendants assertion that the jury should have been polled when it asked on the record for it ignores the fact that the jury had, by this time, been exposed to improper matters, as stated above. Therefore, it would have been inappropriate for the court to poll the jury at this point.

6. Trial of the Priors

a. Propriety of the Trial Court Determining That the Prior Was a Strike

Defendant contends that the trial court erred in refusing to submit to the jury the question of whether his prior conviction for battery, during which great bodily injury was inflicted, qualified as a prior involving infliction of great bodily injury on any person other than an accomplice, which made it a strike. He contends that we should carve an exception to the California Supreme Courts holding in People v. McGee (2006) 38 Cal.4th 682 (McGee) for cases in which a factual determination, such, as here, whether the victim of the prior was an accomplice, needs to be made. However, defendant misunderstands the holding in McGee, which, he concedes, binds us.^[14]

In McGee, the priors were Nevada convictions for robbery, which differed from California robberies as to two different elements. (Id. at p. 688.) The McGee trial court was thus required to determine whether the Nevada robberies would have constituted robberies in California had they been committed here. (Ibid.) It examined the transcripts of the preliminary hearings and of defendants plea in determining that both would have been robberies had they been committed in California. (Id. at pp. 689-690.) The California Supreme Court rejected the defendants contention, despite Apprendi v. NewJersey(2000) 530 U.S. 466 [120 S.Ct. 2348], that the federal constitution afforded him a right to have a jury, rather than the trial court, examine the record of the prior conviction to determine whether it qualified as a strike. (Id. at pp. 691-692.) There is no language in McGee that serves as a basis for defendants contention that an exception to its holding should be made here because the issue was whether the victim of the prior was his accomplice. Rather, that determination, like the one in McGee and Monge v. California (1998) 524 U.S. 721, 728 [118 S.Ct. 2246], falls within the Almendarez-Torres exception to Apprendi for prior convictions.^[15] (Id. at pp. 698, 708-709.)

b. Sufficiency of the Evidence Supporting Trial Courts Determination the Prior

was a Strike

For defendants 1986 battery with serious bodily injury to qualify as a strike, it must have been a felony in which [he] personally inflict[ed] great bodily injury on any person, other than an accomplice. (Pen. Code, 1192.7, subd. (c)(8), first italics added.) Defendant contends there was insufficient evidence to support the trial courts implied finding that the victim of his 1986 battery with serious bodily injury was not also an accomplice to the crime. However, one cannot be an accomplice to his/her own battery.

Defendant also contends the evidence was insufficient to support the trial courts implied finding that he personally inflicted the requisite bodily injury on the victim.^[16] On this score, we must agree with him.

In People v. Rodriguez (1998) 17 Cal.4th 253 (Rodriguez), the evidence presented as to the prior comprised only the abstract of judgment, which showed that the defendant pled guilty to a violation of then Penal Code section 245, subdivision (a), assault with a deadly weapon or instrument other than a firearm or by means of force likely to produce great bodily injury. The California Supreme Court held, This evidence, standing alone, did not prove that defendant had pled guilty to a [strike] [,] which [requires that] the defendant personally inflict[ed] great bodily injury . . . or personally use[d] a dangerous or deadly weapon. One may . . . violate section 245(a) . . . in two ways that would not qualify as serious felonies under section 1192.7, subdivision (c) [i.e., by] aid[ing] and abet[ing] the assault without personally inflicting great bodily harm or [by] commit[ting] the assault with force likely to cause great bodily injury, without, however, actually causing great bodily injury or using a deadly weapon. Accordingly, the least adjudicated elements of the crime defined in section 245(a) . . . are insufficient to establish a serious felony. [Citations.] [] Certainly the prosecution was entitled to go beyond the least adjudicated elements of the [prior] and use the entire record to prove that defendant in fact personally inflicted great bodily injury . . . or personally used a dangerous or deadly weapon. . . .  [Citations.] However, the People failed to do so. They offered only the abstract of judgment, which proved nothing more than the least adjudicated elements of the charged offense. The evidence supporting this strike allegation was thus insufficient[.] [] The Court of Appeal, which found the evidence sufficient to support the strike finding, reasoned [that,] It is possible -- from the proof offered -- appellant may not have personally used a dangerous or deadly weapon yet still have been convicted as alleged. But as a reviewing court determining sufficiency of the evidence neither possibilities nor proof beyond a reasonable doubt are our concern. The error in this reasoning, of course, is that when 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 . . . law. [Citation.] The People, who had the burden of proof, offered no evidence to show otherwise. (Id. at pp. 261-262; Accord, People v. Cortez (1999) 73 Cal.App.4th 276, 280 [where the record does not disclose the facts pertaining to the prior conviction of shooting from a motor vehicle, and it could have been committed without defendant personally using a firearm, defendants conviction for it was insufficient proof that he personally used a firearm].)

As in Rodriguez, there is nothing in the record before us concerning the priors other than the fact that defendant pled guilty to and was granted probation for violating Penal Code sections 242 and 243, subdivision (d).^[17] Although there was a preliminary hearing transcript and a probation report, neither were offered in evidence below by the People. We note that the charging document in the 1986 case names only defendant and no other perpetrators. No co-defendants appear in it or in any of the other documents concerning the case. However, in People v.Henley (1999) 72 Cal.App.4th 555, 562, the Court of Appeal pointed out that there may be any number of reasons why a perpetrator may not be charged for a crime, none of which establishes beyond a reasonable doubt that the charged defendant was the only principle. Thus, as in Rodriguez, there was insufficient evidence defendant personally inflicted great bodily injury on the victim of his 1986 battery.^[18]

Therefore, we will reverse the true finding as to the 1986 prior allegation, strike the sentence^[19]and remand the matter for retrial of that allegation. (See People v. Monge (1997) 16 Cal.4th 826, 845.)

Disposition

The conviction is affirmed, as is the true finding that defendant suffered a prior conviction for which he served a prison term and a strike prior in 1991. The finding that he also suffered a strike prior in 1986 and the sentence are reversed and the matter is remanded for retrial of the truth of that allegation and resentencing.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

HOLLENHORST

J.

KING

J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

^[1] Upon the agreement of the parties, we have reviewed the confidential materials involving the victim, and, like the trial court concluded, find that they are irrelevant to the case.

^[2] The prior trial had resulted in a not guilty verdict on a charge of receiving a stolen vehicle and a hung verdict on the driving/taking a vehicle charge. The trial at issue here involved only the latter charge.

^[3] Later, the trial court noted that the prosecutor had so admonished the victim.

^[4] Defendant testified that he used the car to go to Los Angeles to get his food stamp card (and he may have also gone to Long Beach to visit his ex-girlfriend). He intended to go to a grocery store to get food that everybody was going to enjoy[,] including the victim. However, on his way home from Los Angeles, he got side-tracked with buying beer and visiting a friend. He testified that he and the victim ate each others food while he lived with her. The victim, on the other hand, testified that defendant never paid her for the food he ate at her house, implying that he also did not purchase groceries for her. Both the victim and defendant testified that shortly before the offense, he had asked her to let him drive her car, with her in it, to go to Los Angeles to get his food stamp card and she had refused.

^[5] It was undisputed that the other two elements of the offense, that the car did not belong to defendant and that the owner did not consent to the taking or driving, had been established.

^[6] The prosecutor argued to the jury, without objection by defense counsel, [I]f hes using [the victims car] for his own benefit, using it for himself, hes depriving her of possession of her car. [] [D]efendant did intend to deprive her of it by using it for his own benefit . . . .

^[7] See footnote 5, ante.

^[8]Doyle v. Ohio (1976) 426 U.S. 610

^[9] See footnote 10, infra.

^[10] The following colloquy occurred between defense counsel and defendant, Q [DEFENSE COUNSEL]: [D]id [the officer] tell you that youre being stopped for the theft of your moms car? [Italics added.]

A [Defendant]: No. He didnt say actually my moms car. He said [Y]oure in a stolen vehicle.[] I said[, N]o, this is my mothers car.  . . . I didnt stole [sic] my moms car.[]

Later, the following colloquy occurred between defendant and the prosecutor,

A [Defendant]: When the officer pulled me over, I asked what was going on. I think[ that] is the first thing I did. . . .  

Q [Prosecutor]:  . . . When the officer pulled you over, did you tell him it was your mothers car?

A [Defendant]: At some point I think I did say it at some point. Thats not initially what I said.

Q [Prosecutor]: What initially did you say?

A [Defendant]: Why are you stopping me? Whats going on?

Q [Prosecutor]: And the officer explained the situation?

A [Defendant]: He said I was in a stolen car.

Q [Prosecutor]: Thats when you told him that the car belonged to your mother?

A [Defendant]: I said, What do you mean stolen car? Its my moms car. I didnt steal no car. Thats what I said.

Q [Prosecutor]: When you told the officer what do you mean its a stolen car, its my moms car, you didnt tell him Im just going out to buy groceries, Im just going out to run an errand for my mom? [Italics added.]

A [Defendant] He didnt ask. I didnt tell him. It wasnt his business.

^[11] We thus rejected the Peoples concession that Doyle error actually occurred.

^[12] See footnote 4, ante.

^[13] Defendant testified that the request had been made by his attorney in the courtroom just after the clerk asked the jury if that was its verdict. After hearing defendants testimony, the trial court reiterated its earlier finding that a request did not appear in the record, nor did the court hear one being made in open court.

^[14] Ironically, defense counsel below stated that the issue here, i.e., whether defendants prior Penal Code section 243, subdivision (d) conviction constituted a strike, was very similar to the issue . . . in . . . McGee.

^[15] The distinction defendant draws between an examination of the bare elements of the prior offense which, he suggests the trial court may determine, and anything else, which should be determined by the jury, is without support. McGee made clear that the trial court is constitutionally empowered to examine the entire record of the prior to determine whether it constituted a qualifying offense, and not just examine the bare elements of the prior. (McGee, supra, 38 Cal.4th at pp. 685-686, 692, 694.)

^[16] We note that neither of these matters, i.e., whether defendants victim was an accomplice or whether he personally inflicted serious bodily injury, was expressly brought to the trial courts attention by defense counsel, who made a non-specific motion to acquit at the close of evidence.

^[17] In 1986, Penal Code section 243, subdivision (d) punished a battery committed against any person [when] serious bodily injury is inflicted on the person [.]

^[18] The People make the stunning assertion that defendant personally used a deadly weapon during the prior, therefore, it is a strike under Penal Code section 1197.7, subdivision (c), which makes all felonies in which the defendant personally used a dangerous or deadly weapon serious offenses. Even more stunningly, the People cite Rodriguez as authority for their assertion. First, although defendant was charged in connection with the 1986 case with assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(2), in that he assaulted the victim with a pipe and gun, he did not plead to that charge, but to battery resulting in serious bodily injury. Even if somehow, the offense to which he pled could be ignored in favor of the offense with which he was originally charged, there was no showing that he personally used a deadly weapon, and Rodriguez is authority for this proposition, not for the Peoples position. Finally, defendant was charged in the current case with having suffered a prior for personally inflict[ing] great bodily injury, . . . in violation of Penal Code section 243, subdivision (d) not personally using a deadly weapon or violating Penal Code section 245, subdivision (a)(2). To adopt the Peoples position, we would have to ignore defendants due process right to notice of what prior conviction was being used as the basis for the allegation.

^[19] Therefore, we will not address defendants contentions that the trial court erred in denying his motion to dismiss one or both strikes or reduce his conviction to a misdemeanor or that his sentence constitutes cruel and unusual punishment.