P. v. Santoyo

Filed 4/12/07 P. v. Santoyo CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Michael L. Schuur, Judge. Affirmed.

California Appellate Project, Jonathan B. Steiner and Richard L. Fitzer for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *

Appellant Jesus Salvador Santoyo was convicted by a jury of possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1))^[1]and possession of a short-barreled shotgun ( 12020, subd. (a)(1)). He appeals the doubling of his sentence under the Three Strikes law ( 667, subd. (d)(1), 1170.12, subd. (b)(1)) based on a prior conviction for assault under section 245, subdivision (a)(1). That section can support a conviction either for an assault with a deadly weapon, which qualifies as a serious felony under section 1192.7, subdivision (c)(31) and thus a strike, or with force likely to produce great bodily injury, which does not qualify as a strike under that section. Santoyo contends his section 245 assault conviction did not qualify as a strike because there was no explicit finding that the assault was a serious felony and that any implied finding of a serious felony was not supported by substantial evidence, which consisted of an abstract of judgment stating that his conviction was for assault w/deadly weapn. Santoyo also requests our review of the trial courts order of an in camera hearing pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Charged Offenses and Pitchess Hearing

On November 26, 2005 at 3:30 a.m., Los Angeles County Sheriffs Deputy Guillermo Sanchez and his partner observed Santoyo and another man standing near a liquor store in a high-crime neighborhood. When the deputies shined lights on the two, they walked in different directions. Santoyo ignored Deputy Sanchezs order to stop and turned sideways in an apparent attempt to shield from the deputys view a metal object that he was carrying. Santoyo tossed the object into the doorway of a store. He was detained. The object was recovered and identified as a loaded, single-shot, sawed-off shotgun. The serial number had been removed.

An information charged Santoyo in count 1 with possession of a firearm by a felon pursuant to section 12021, subdivision (a)(1) and in count 2 with possession of a

short-barreled shotgun or rifle in violation of section 12020, subdivision (a)(1). It also alleged that Santoyo was previously convicted of a serious or violent felony within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, subdivision (a). That conviction was for an assault in violation of section 245, subdivision (a)(1).

Santoyo filed a motion pursuant to Pitchess , supra, 11 Cal.3d 531 seeking the confidential personnel records of the arresting officers. In support of the motion, Santoyos attorneys declaration stated Santoyo did not have a weapon and did not toss a metal object when the officers confronted him and sought personnel records of the officers credibility. The trial court granted Santoyos Pitchess motion, held an in camera hearing and found no discoverable matters.

Trial

Santoyo did not waive a jury trial on the issue of whether he was a convicted felon for purposes of count 1, stating I want the jury to hear everything. After jury selection, the court asked defense counsel: One thing I wanted to ask you . . . I didnt read the fact that the defendant was charged with a prior under 1170.12. Did you want to bifurcate that or does he want that to be submitted to the jury at the same time, also. In response, counsel moved to bifurcate and the court stated, Ill go with that. And I dont know if they find that conviction to be true how much is left out of all that but theres probably something.

The evidence adduced at trial included a form abstract of judgment showing Santoyo was convicted of a violation of PC 245(A)(1) assault w/deadly weapn in 1998. The district attorneys paralegal charged with providing the documentation necessary to prove allegations of prior convictions testified that an abstract of judgment is created by the court after a conviction to show, inter alia, the pertinent information as to . . . the charges . . . .

The jury convicted Santoyo on both counts. As part of its guilty verdict on count 1, the jury specifically found that Santoyo was previously convicted for a violation of section 245(a)(1). After the verdicts were read, the court dismissed the jury without objection by counsel. In setting the matter for sentencing, the court stated: And if you had any other evidence or that you wanted to present on the strike prior you can do it at that time.

Sentencing

The following colloquy took place at the sentencing hearing:

THE COURT: . . . . The defendant was convicted of count 1 and 2, and the jury also found true the priors, because they were not bifurcated.

In regard to the strike prior, Mr. Suzukawa, do you want to submit any further information in determining whether there was a strike or not?

MR. SUZUKAWA: No. Submitted.

THE COURT: Want to say anything before I sentence Mr. Santoyo?

MR. SUZUKAWA: No. The court does have my Romero motion for it.

The court denied Santoyos motion pursuant to People v. Superior Court (Romero)(1996) 13 Cal.4th 497 (Romero) to dismiss his prior strike. The court denied probation and sentenced Santoyo to six years in state prison based on the high term of three years on count 1, doubled pursuant to the Three Strikes law. The sentence on count two was stayed pursuant to section 654. Santoyo appealed.

DISCUSSION

I. Contentions on Appeal and Standards of Review

Santoyo contends the case must be remanded for a trial to determine whether his conviction for violation of section 245, subdivision (a)(1) constituted a serious felony within the meaning of sections 667, subdivision (b) through (i) and 1170.12, subdivisions (a) through (d). He argues that there was never an explicit finding of a serious felony and that even if the trial court were determined to have impliedly so found, the finding was not supported by substantial evidence. Santoyo also requests that we independently review the sealed transcript of the trial courts in camera Pitchess review.

Respondent argues that Santoyo waived any objection to the lack of an explicit strike finding by not raising that objection below, that the trial court necessarily made that implied finding before ruling on the Romero motion, and that the finding is supported by substantial evidence.

We independently conduct a Pitchess review for an abuse of discretion by the trial court. (People v. Hughes (2002) 27 Cal.4th 287, 330.) We review the finding of a serious felony for the purposes of the Three Strikes law under a substantial evidence standard. (People. v. Jones (1999) 75 Cal.App.4th 616, 631.) Accordingly, [we] must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. . . . [Citations.] (People. v. Jones (1995) 37 Cal.App.4th 1312, 1315.)

II. Pitchess Review

Pursuant to appellants request that we conduct a Pitchess review, we issued an order on January 11, 2007 for the preparation of a sealed reporters transcript of the Pitchess hearing below and ordered that the trial court augment the record on appeal to include copies of the peace officers personnel records reviewed . . . . On February 21, we received a sealed reporters transcript that identified documents that had been examined by the trial court, but on February 26 we received a certificate of clerk stating that [a]fter a thorough search, the peace officers personnel records cannot be found in the court file.

On March 8, 2007 we issued another order listing in a sealed addendum the documents identified in the sealed reporters transcript that the trial court had examined. We ordered the court to obtain copies of those documents and transmit them to this court along with any additional clerks or reporters transcripts rendered pursuant to the March 8 order. We received that augmented record on April 4.

We have now reviewed both the sealed reporters transcript and the sealed augmented record and find no abuse of discretion in the trial courts order that there were no discoverable matters with respect to either deputy.

III. Waiver

Respondent contends that Santoyo waived any right to argue on appeal that the trial court erred in not explicitly finding that his prior conviction was a serious felony and, hence, a strike.^[2] Santoyo argues that a claim of an illegal sentence, such as an erroneous doubling of his sentence, is never waived. But the cases he cites do not stand for that proposition. (See People v. Welch (1993) 5 Cal.4th 228, 235 [failure to object in trial court to erroneous probation report waives the objection on appeal]; People v. Jordan (2006) 141 Cal.App.4th 309, 323 [court expressly did not decide waiver issue].) Instead, we apply the usual rule that [a]n appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method . . . . [I]t is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial. [Citation.] The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had . . . . [Citation.] . . . . No procedural principle is more familiar to this Court than that a constitutional right, or a right of any other sort, may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it. [Citation.] [Citation.] (People v. Saunders (1993) 5 Cal.4th 580, 589590, fn. omitted.)

The record shows that, despite many opportunities to do so, Santoyos counsel made no attempt to object to the lack of an express finding and to thus have any such error immediately corrected by the trial court. There were a number of instances when the fact that the court had impliedly reached the conclusion that the prior section 245, subdivision (a)(1) conviction was for a serious felony was clearly evident. The court indicated that he would make a finding on that issue when he instructed defense counsel to present his evidence with respect to strikes prior at the upcoming sentencing hearing. The court again signaled his intent to make such a finding when he asked defense counsel at the sentencing hearing whether he had anything to present in determining whether there was a strike or not. The court then expressly ruled on Santoyos Romero motion, stating that he would not strike the prior. Finally, the court doubled Santoyos sentence based on the strike prior.

The fact that the court offered counsel the opportunity to further litigate the issue of the existence of a prior strike obviates Santoyos suggestion on appeal that the court may have mistakenly assumed that issue to have already been settled. Additionally, because the purpose of the Romero motion was to have the court reconsider and strike prior felony convictions that fall within the meaning of the Three Strikes law, it is apparent that the trial court necessarily did determinejust as he repeatedly indicated to counsel that he wouldthat the section 245, subdivision (a)(1) conviction qualified as a serious and hence Three Strikes felony. Indeed, counsels referral of the court to his Romero motion suggests that he believed either that he had no basis to argue that the 1998 conviction did not constitute a strike or that the court had already impliedly made that finding. Because he made no objection that the implicit serious felony finding needed to be made explicit, Santoyo has waived that argument on appeal.

We are not persuaded to the contrary by Santoyos reliance on People v. Humphrey (1997) 58 Cal.App.4th 809, 814 and People v. Superior Court (Pipkin) (1997) 59 Cal.App.4th 1470, 1478. The requirement discussed in those cases that the trial judge must include in the minutes the reasons for dismissing a strike allegation is based on an express requirement to that effect contained in section 1385.^[3] No such statutory mandate applies in this case.

IV. Implied Finding Supported by Substantial Evidence

Sections 667, subdivision (d)(1) and 1170.12, subdivision (b)(1) provide for the doubling of a sentence for a felony conviction based on a prior conviction for a serious or violent felony. Section 1192.7, subdivision (c) in turn enumerates serious felonies. Included in that list is assault with a deadly weapon . . . in violation of Section 245. ( 1192.7, subd. (c)(31).)^[4] Santoyos high term three-year sentence for possession of a firearm by a felon was doubled based on his 1998 conviction for violation of section 245, subdivision (a)(1). But a conviction under section 245, subdivision (a)(1) can be based either on an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury. ( 245, subd. (a)(1).) Consequently a conviction for an assault under that section could qualify as a serious felony under section 1192.7, subdivision (c)(31) if committed with a deadly weapon, but would not if committed with some other means of force likely to produce great bodily harm. Here, we consider the sufficiency of the abstract of judgment to prove that Santoyos 1998 assault conviction involved the use of a deadly weapon.

Santoyo relies on a split of opinion between two divisions of this court to argue that the abstract of judgment is insufficient to prove that his assault conviction included the use of a deadly weapon. He urges us to disregard Division Fives holding in People v. Luna (2003) 113 Cal.App.4th 395 (Luna) (review denied Feb. 4, 2004, S121415) that an abstract of judgment noting a conviction under section 245, subdivision (a)(1) for ASSLT GBI W/DLY WPN was sufficient to uphold a finding of a prior strike. Instead, Santoyo asks us to follow Division Sixs conclusion that an abstract of judgment bearing a similar notation, ASSAULT GBI W/DEADLY WEAPON, was insufficient to support an enhanced sentence under the Three Strikes law. (People v. Banuelos (2005) 130 Cal.App.4th 601, 605 (Banuelos).)^[5]

But the issue presented in Luna and Banuelos is not implicated here. That is so because the abstract of judgment in this case does not include reference to both qualifying and unqualifying types of assault under section 245. The court in Banuelos, supra, 130 Cal.App.4th at page 606 refused to follow the Luna decision because the abstracts of judgment in both cases referenced the crime as ASSAULT GBI W/DEADLY WEAPON . . . . [which] could be read to mean that the assault was committed both by means of force likely to produce great bodily injury and with a deadly weapon, it could also be construed as a shorthand description of the criminal conduct covered by section 245, subdivision (a)(1) . . . . Of the description in the abstract of judgment analyzed in Luna, ASSLT GBI W/DL[Y] WPN, the Banuelos court stated, we cannot be confident that this abbreviated description of a statute prohibiting two types of criminal conduct was anything more than that particular court clerks shorthand method of referring to the statute under which appellant was convicted. (Banuelos, supra, at p. 606.)

No such ambiguity exists in the proof proffered below. The abstract of judgment stated that the conviction was for an assault w/deadly weapn.^[6] It did not give rise to the possibility that the conviction might instead have been for force likely to lead to great bodily harm. Santoyos argument requires us to presume that the court clerk incorrectly prepared the abstract of judgment. But the evidentiary presumption is to the contrary. Evidence Code section 664 provides: It is presumed that official duty has been regularly performed. That presumption applies to the duties of court clerks. (See In re Lopez (1970) 2 Cal.3d 141, 146 [presumption that preparing docket entry was regularly performed]; Smith v. Smith (1958) 157 Cal.App.2d 658, 662 [presumption that minutes of court are correct].) Santoyo had the opportunity to rebut this presumption by providing evidence that his prior conviction under section 245, subdivision (a) was not for assault with a deadly weapon. He presented no such evidence.^[7]

The Supreme Courts holding in People v. Rodriguez (1998) 17 Cal.4th 253 (Rodriguez) is likewise not implicated here. Like Luna and Banuelos, that case analyzed the sufficiency of an abstract of judgment with the ambiguous notation ASLT GBI/DLY WPN. (Rodriguez, supra, at p. 261.) The Court ruled that such an annotation merely reflected the statutory language, proving nothing more than the least adjudicated elements of the charged offense. (Id. at pp. 261, 262.) But the annotation in the abstract of judgment at issue here includes only one of the two section 245, subdivision (a)(1) assaults. Thus it serves as proof of the elements of the specifically listed offense and not of the lesser of two possible offenses, as argued by appellant. Consequently, we affirm the trial courts doubling of Santoyos sentence based on the 1998 conviction for violation of section 245, subdivision (a)(1), assault with a deadly weapon.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______________________, Acting P. J.

DOI TODD

We concur:

_______________________, J.

ASHMANN-GERST

_______________________, J.

CHAVEZ

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] No error may be attributed to the lack of a jury determination on the serious felony issue. [T]he court, not the jury, determines whether a conviction is serious. (People v. Kelii (1999) 21 Cal.4th 452, 454.)

^[3] Section 1385 provides in relevant part: (a) The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes.

^[4] Section 245 assaults can qualify as serious felonies under other section 1192.7 definitions as well, none of which are implicated in this appeal. ( 1192.7, subd. (c)(8) [defendant personally inflicted great bodily injury or personally used a firearm], subd. (c)(23) [defendant personally used a dangerous or deadly weapon].)

^[5] We note that this issue is before the California Supreme Court in People v. Delgado (review granted Mar. 29, 2006, S141282).

^[6] The fingerprint card also describes the conviction as assault w/deadly weapn raising no ambiguity with respect to the crime committed. (See also People v. Williams (1996) 50 Cal.App.4th 1405, 1413; People v. Ruiz (1999) 69 Cal.App.4th 1085, 1091 [We know of no reasonable basis to believe that the Department of Corrections employee who made the notation [on the fingerprint card] had any information concerning the underlying conviction other than that revealed in the abstract of judgment].)

^[7] At the beginning of the trial on the possession of a firearm by a felon and possession of a short-barreled shotgun charges, defense counsel informed the court that he had unsuccessfully advised his client to stipulate that he was a felon. ( 12021, subd. (a)(1)), 12020, subd. (a)(1).) His reasons were as follows: We are challenging whether or not he possessed the firearm on the occasion that were going to be speaking about in the trial. Now the jury is going to hear, as the court described, what his prior convictions are. My concern, and the reason I thought it would be best to stipulate, is that I dont want the juryto have that unduly influence their decision as to whether or not they believe my client possessed a firearm. Even though counsel later requested and received an instruction that the jury should limit the abstract of judgment for the section 245 offense solely to the issue of whether there was a prior felony conviction, it is improbable that counsel would not also have introduced evidence that the conviction did not rest on possession of a deadly weapon had that been the case.