P. v. Hernandez

Filed 2/22/07 P. v. Hernandez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant Gabriel Hernandez was convicted after jury trial of inflicting corporal injury on the mother of his child (Pen. Code, 273.5, subd. (a)),[1] and felony false imprisonment ( 236, 237). In a bifurcated proceeding, the trial court found that defendant had two prior serious felony convictions that also constituted strikes ( 667, subd. (a), 1170.12, 1192.7, subd. (c)), and that he had served two prior prison terms ( 667.5, subd. (b)). The court denied defendants request to strike his strikes, and sentenced defendant to the indeterminate term of 25 years to life.

On appeal defendant contends that (1) the courts instructions to the jury pursuant to CALJIC Nos. 5.40 and 5.42 misstated the law; (2) counsels failure to object to CALJIC Nos. 5.40 and 5.42 and to request correct instructions constituted ineffective assistance; (3) the court improperly instructed the jury pursuant to CALJIC No. 5.55; (4) the court improperly admitted evidence of defendants prior misdemeanor battery conviction; (5) the cumulative effect of these errors requires reversal; and (6) there is insufficient evidence to support the findings as to the prior strikes. We disagree with all of these contentions, and therefore affirm the judgment.

BACKGROUND

Defendant was charged by information with inflicting corporal injury on the mother of his child ( 273.5, subd. (a); count 1), and felony false imprisonment ( 236, 237; count 2). The information further alleged that defendant personally inflicted great bodily injury during the commission of the offense in count 1 ( 12022.7, subd. (e)), that he had two prior serious felony convictions that also constituted strikes ( 667, subd. (a), 1170.12, 1192.7, subd. (c)), and that he had served two prior prison terms ( 667.5, subd. (b)). The trial court granted defendants motion to bifurcate the trial on the alleged priors.

Pursuant to Evidence Code sections 1109 and 1280, the prosecutor sought to introduce evidence at trial of defendants 2002 domestic violence offense through certified documents showing defendants conviction for violating sections 242 and 243, subdivision (e). Defendant objected to admission of any evidence of the prior and, alternatively, to admission of evidence of the prior by way of certified documents in lieu of live testimony. The court overruled defendants objections and allowed the prior to be proved by way of certified documents.

The Trial Evidence

Beginning in 1998, defendant and Yolanda Nichols had a five-year romantic relationship during which they had two children. They lived together some of that time, mostly with defendants mother or his brother. In September 2003, Nichols was staying with defendant periodically at his mothers home, but their relationship was kind of rocky.

On September 20, 2003, defendant came to Nicholss mothers home to pick up a library book that Nichols had checked out for him at his request. Defendant left after about ten minutes but told Nichols that he would come back later to spend some time with her and the children. Nichols assumed that defendant would return in about one and one-half hours. When defendant had not returned after about two hours, Nichols walked to her aunts nearby home. Her aunt was not home so Nichols walked back home. On her way back Nichols saw defendant drive by. Later that day, around 6:00 p.m., defendant telephoned Nichols and told her that he was tired of her lies and her bullshit, that there was nothing for him in San Jose, and that he was moving to Sacramento. Nichols knew that defendant had a child from another relationship and that the mother of the child lived in Sacramento; during their five-year relationship, defendant often told Nichols that he was going to go back to the woman in Sacramento.

Nichols told defendant that if he were to move, he needed to leave the library book. Defendant told Nichols that if she wanted the book, she would have to either get it immediately or drive to Sacramento for it later. After talking with defendant, Nichols talked to defendants mother about their conversation and her desire to retrieve her things from his mothers home. Defendants mother told Nichols that she would not be home and that she did not want Nichols to go into her home if nobody else was there. Nichols knew that defendant was calling from his sister-in-laws home, so she asked her mother to drive her there so that she could pick up the library book. When she and her mother arrived at defendants sister-in-laws home less than ten minutes later, Nichols saw defendant in the driveway putting things in his car. Nichols walked up to him and asked him for the book. Defendant said that he did not have it. Nichols said that he did have the book, that she had given it to him earlier, and that he had it in his backpack. During their argument, defendant got in his car and tried to close the car door but Nichols stood so that she prevented him from doing so. Defendant got out of the car, took the book from his backpack and, with the books spine facing Nichols, shoved it roughly into the middle of her chest, causing her to stumble backwards.

Nichols returned to her mothers car and asked her mother to take her to defendants mothers home so that she could retrieve her belongings. Defendants car was still in his sister-in-laws driveway when they left, but Nichols and her mother saw defendant follow them on their way to defendants mothers home. Nichols did not see defendant when she arrived at his mothers home, so she jumped out of the car and knocked on the front door. She did not go to the back sliding-glass patio door, which she expected would be unlocked, because of what defendants mother had said to her earlier. When she saw defendants car drive by, she ran around to the back of the home and saw defendant going through the backyard patio gate.

Nichols ran to the sliding-glass door and pounded on it, yelling for defendant to return her things to her. Defendant came to the door, looking angry. He opened the door and told Nichols to leave. When she tried to enter the home defendant walked out, grabbed Nichols by the neck, and shoved her backwards. She stumbled backwards but regained her balance and walked towards the door. Defendant swung his closed fist at her head, hitting her four to five times. Nichols stumbled backwards, hit a fence post and fell to the ground, causing her to hurt her tailbone and sustain scratches on her back. She tried to get up and to make him stop, but he started kicking her on her lower back and buttocks. He then grabbed her by her hair and dragged her out of the patio area towards the carport. Nichols heard a woman scream that she was going to call the police, and yelled back at her to do so. Defendant pointed up at a neighbors window and said, Ill get you.

Defendant let go of Nichols and walked back into the patio area. Nichols got up, dusted herself off and straightened her hair. When she began to follow defendant, her mother came into the patio area from inside the home,[2] picked up a broomstick, and pushed it across defendants chest. Nichols and her mother went inside the home, but the door to the bedroom where she stayed with defendant was locked. Defendant came inside and told Nichols and her mother to leave, while Nichols continued to say that she wanted her belongings. Defendant then left, and Nichols ran to his car and told him to give her the key. Defendant sat with a blank look on his face and did not answer Nichols. Nichols ran back inside the home, grabbed a spoon from the kitchen, unlocked the bedroom door using the spoon handle, and retrieved her belongings. Nichols then called defendants mother, waited for her to return home, and left when she asked Nichols to.

The neighbor who witnessed the incident and threatened to call the police did not call the police until the following day. Nichols also reported the incident to the police the following day. In addition to the scratches on her back and a sore tailbone, Nichols sustained abrasions on her temple and a ruptured eardrum which affected her hearing. She was able to regain her hearing following an operation.

A minute order indicating that defendant was convicted of misdemeanor battery of a person in a dating relationship pursuant to sections 242 and 243, subdivision (e), on July 11, 2002, was admitted into evidence as exhibit 10. The parties stipulated that the victim listed in the complaint in the case was Angelica Valdez.

The defense rested without presenting any evidence.

Verdicts, Findings on the Priors, Motion to Strike the Strikes, and Sentencing

On November 15, 2005, while the jury was deliberating and outside its presence, defendant waived jury trial on the alleged priors. The jury found defendant guilty of inflicting corporal injury on the mother of his child ( 273.5, subd. (a)), but found not true the allegation that he personally inflicted great bodily injury on the victim. The jury further found defendant guilty of felony false imprisonment ( 236, 237). On November 16, 2005, the court found the prior allegations to be true.

Defendant filed a statement in mitigation on December 2, 2005, requesting that the court strike his priors. The prosecutor filed opposition to the motion. On February 1, 2006, the court denied defendants request to strike the strike priors, but struck the prison priors and sentenced defendant to the indeterminate term of 25 years to life.

DISCUSSION

CALJIC Nos. 5.40 & 5.42

The court instructed the jury pursuant to CALJIC Nos. 5.40, 5.42, and 5.43 as follows.

The lawful occupant of a residence has the right to request a trespasser to leave the premises. If the trespasser does not do so within a reasonable time, the occupant may use reasonable force to eject the trespasser. The amount of force which may be used to eject the trespasser is limited by what would appear to a reasonable person, under the existing circumstances, to be necessary to prevent damage to the property or physical injury to the occupant. (See CALJIC No. 5.40.)

A person may defend his home or dwelling against anyone who manifestly intends or endeavors in a violent and riotous manner, to enter that home or dwelling and who appears to intend violence to any person in that home or dwelling. [] . . . [] The amount of force which the person may use in resisting the trespass is limited by what would appear to a reasonable person in the same or similar circumstances, necessary to resist the violent or unlawful entry. The person is not bound to retreat even though a retreat might safely be made. The person may resist force with force, increasing it in proportion to the intruders persistence and violence if the circumstances which are apparent to the lawful occupant of the property are such as would excite similar fears and a similar belief in a reasonable person. (See CALJIC No. 5.42.)

When conditions are present which, under the law, justify a person in using force in defense of property, that person may use that degree and extent of force as would appear to a reasonable person, placed in the same position, and seeing and knowing what the resisting person then sees and knows, to be reasonably necessary to prevent imminent injury threatened to the property. Any use of force beyond that limit is excessive and unjustified, and anyone using excessive force is legally responsible for the consequences thereof. (See CALJIC No. 5.43.)

Defendant contends that CALJIC No. 5.40 misstated the law regarding the extent of the force he was entitled to use to eject Nichols from the property, and improperly limited his defense. He argues the instruction improperly focused the attention of the jury on damage to the property or physical harm to its residents, which at best constituted some but not all of the factors that the jury was entitled to consider in determining whether the force used was reasonable. Moreover, because the instruction failed to advise the jury that the People had the burden of disproving [defendants] right to defend the property beyond a reasonable doubt . . . it failed to properly advise the jury as to the standard to be used in determining the key issue in this case. He notes that CALCRIM No. 3475 omits all references to damage to property or physical injury to occupants, expressly provides that reasonable force is that amount of force a reasonable person would believe is necessary to make the trespasser leave, and expressly provides that the burden is on the People to prove beyond a reasonable doubt that defendant used excessive force.[3]

Defendant further contends that CALJIC No. 5.42 deals with justifiable homicide and has nothing whatever to do with the reasonableness of lesser force to protect ones property from intrusion. Moreover, that instruction squarely conflicts with Civil Code section 50, which provides that [a]ny necessary force may be used to protect from wrongful injury the person or property of oneself . . . . . . and which contains no language limiting the use of force based on the supposed intent of the intruder.

In a related argument, defendant contends that any failure by defense counsel to object to the giving of CALJIC Nos. 5.40 and 5.42, and to request an instruction regarding which party bore the burden of proof regarding his defense-of-property theory, constitutes ineffective assistance of counsel.

In a criminal case, a trial court has a duty to instruct the jury on the general principles of law relevant to the issues raised by the evidence. The general principles of law governing the case are those principles connected with the evidence and which are necessary for the jurys understanding of the case. As to pertinent matters falling outside the definition of a general principle of law governing the case, it is defendants obligation to request any clarifying or amplifying instructions. (People v. Estrada (1995) 11 Cal.4th 568, 574.)

In reviewing the purportedly erroneous instructions, we inquire whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution. [Citations.] In conducting this inquiry, we are mindful that

a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge. [Citations.] (People v. Frye (1998) 18 Cal.4th 894, 957.) Additionally, we must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citations.] (People v. Mills (1991) 1 Cal.App.4th 898, 918.)

CALJIC Nos. 5.40 and 5.42 are correct statements of the law. Defense of habitation applies where the defendant uses reasonable force to exclude someone he or she reasonably believes is trespassing in, or about to trespass in, his or her home. (People v. Curtis (1994) 30 Cal.App.4th 1337, 1360.) [A] person assailed in his own house is not bound to retreat from the house to avoid violence, even though a retreat might safely be made. (People v. Hubbard (1923) 64 Cal.App. 27, 35-36.) The person who is acting in defense of his habitation must first use moderate means before resorting to extreme measures. But he may resist force with force, increasing it in the ratio of the intruders resistance, without measuring it in golden scales; and whether he has used excessive force or not is a question for the jury. The question of the amount of force justified in repelling an assault or maintaining the possession of property . . . is one peculiarly within the province of the jury. [Citation.] (Id. at p. 35, italics omitted; see also People v. Miller (1946) 72 Cal.App.2d 602, 606.)

CALJIC Nos. 5.40, 5.42 and 5.43 correctly informed the jury that defendant had the right to request that Nichols leave the premises, and that he could use reasonable force to eject her when she did not do so. The instructions also correctly informed the jury that defendant could resist force with force and that he was not required to retreat. Lastly, the instructions correctly informed the jury that the amount of force that defendant could properly use was limited, and that he could not use more force than was reasonably necessary to prevent injury to person or property. Thus, the instructions, as does CALCRIM No. 3475, correctly informed the jury that a lawful occupant may use reasonable force to eject a trespasser who poses a threat to the property or occupants, and defined reasonable force as that reasonably necessary to protect the property or occupants. As the instructions were a correct statement of the applicable law, counsel cannot be faulted for failing to object to the giving of the instructions. (See Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Ledesma (1987) 43 Cal.3d 171, 215.) It was defendants obligation to request clarifying or amplifying instructions if he felt the instructions failed to list all of the factors the jury was entitled to consider in determining whether the force he used in an attempt to eject Nichols was reasonable. (People v. Estrada, supra, 11 Cal.4th at p. 574.) Yet, defendant does not contend that counsels failure to request such clarifying or amplifying instructions constituted ineffective assistance.

The court instructed the jurors pursuant to CALJIC No. 17.31 that some instructions given might not apply depending upon what they find to be the facts, and that they were to disregard any instruction they determine to be inapplicable. The court instructed the jurors pursuant to CALJIC No. 1.01 to consider the instructions as a whole and each in light of all the others. The court also instructed pursuant to CALJIC No. 2.90 on the presumption of innocence and its corresponding burden on the prosecution to prove defendant guilty beyond a reasonable doubt. In addition, the trial court emphasized the point that the prosecution has the burden to prove defendant guilty when it instructed on other principles of law applicable to the case. For example, in instructing on the allegation of infliction of great bodily injury, the court informed the jurors that the prosecution had the burden of proving the allegation true and that, if they had a reasonable doubt that the allegation was true, they must find it to be not true. Moreover, defense counsel reminded the jury during closing argument about the presumption of innocence and the requirement that the prosecution prove each and every element of the charged offenses. Viewing the instructions as a whole, and in light of the record at trial, we conclude that it is not reasonably likely the jury understood the challenged instructions to mean that defendant had the burden of proving that he used no more force than was reasonable. (People v. Frye, supra, 18 Cal.4th at p. 958.) Accordingly, we find that there is no reasonable probability that, had counsel requested an instruction regarding which party bore the burden of proof regarding defendants defense-of-property theory, the result of the proceeding would have been different. (Strickland v. Washington, supra, 466 U.S. at p. 695; People v. Ledesma, supra, 43 Cal.3d at p. 215.)

CALJIC No. 5.55

Apparently without objection, the court instructed the jury on the principles of self-defense pursuant to CALJIC Nos. 5.50 [self-defenseassailed person need not retreat], 5.51 [self-defenseactual danger not necessary], 5.52 [self-defensewhen danger ceases], 5.53 [self-defense not an excuse after adversary disabled], and CALJIC No. 5.55 [plea of self-defense may not be contrived]. CALJIC No. 5.55 informed the jurors that the right of self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense. Defendant contends that this instruction, although correctly stating the law that such defense is unavailable to one who initiates a quarrel and thereby creates the need for its exercise, has no application to this case, because it was undisputed that Nichols, and not [defendant], initiated the dispute. The trial courts instruction, therefore, distorted the facts and the law, and cast further doubt on the validity of [defendants] defense of his mothers property that . . . constituted the central issue in this case.

Issues related to the right of self-defense, including whether defendant provoked a quarrel with the intention of creating a real or apparent need for self-defense, are normally questions of fact to be decided by the trier of fact. (People v. Clark (1982) 130 Cal.App.3d 371, 378, disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 92, 96; People v. Holt (1944) 25 Cal.2d 59, 66.) Accordingly, it was for the jury to determine, for example, whether defendant followed Nichols to his mothers house in order to provoke a quarrel.

There was evidentiary support in this case for the giving of CALJIC No. 5.55. The evidence showed that defendant told Nichols on the telephone that he was moving away and that, if she wanted the library book that he had just that morning received from her, she would have to immediately come get it. Yet, when Nichols arrived and asked for the book, he said that he did not have it. When she insisted that he did, he grabbed the book and shoved it at her, causing her to stumble backwards. Then, when Nichols went to defendants mothers home in order to retrieve some belongings, defendant followed her there and pushed her when she sought entry for that purpose. A reasonable interpretation of this evidence is that defendant initiated a quarrel with Nichols, so the evidence supports the giving of the instruction.

Moreover, even if the courts giving of the instruction was error, it was harmless. Where, as here, the court gives a legally correct, but irrelevant instruction, the error is usually harmless, having little or no effect other than to add to the bulk of the charge.  [Citation.] (People v. Lee (1990) 219 Cal.App.3d 829, 841; see also People v. Crandell (1988) 46 Cal.3d 833, 872-873.) As stated above, the court instructed the jurors with CALJIC No. 17.31, telling them that [w]hether some instructions apply will depend upon what you find to be the facts, and to [d]isregard any instruction which applies to facts determined by you not to exist. We cannot assume that the jury disregarded that instruction and chose instead to follow an instruction that was irrelevant as unsupported by the evidence. (Cf. People v. Olguin (1994) 31 Cal.App.4th 1355, 1381-1382.)

Evidence of Prior Offense

The prosecutor sought to admit certified documents of defendants 2002 conviction for violating sections 242 and 243, subdivision (e), in lieu of live testimony. I believe I have the option of presenting live [testimony] in that regard or as a certified conviction. Peoples preference is to introduce the certified conviction and we believe it is both relevant, probative, its not remote and its not a[n Evidence Code section] 352 issue for the court to consider. Its highly probative on this.

Defendant objected to the admission of a certified copy of his 2002 conviction in lieu of live testimony. Evidence Code section 1109 anticipates live testimony to show the jury that . . . his conduct on a former occasion might be similar to the conduct on this occasion, so therefore the conduct not the conviction is relevant. And under [Evidence Code section] 352 analysis . . . presenting a certified copy of the conviction would not be probative because the jury has no facts in order to do an analysis of whether the conduct on the former occasion was similar to the instant occasion. Furthermore, the court would not be able to do a proper [Evidence Code section] 352 analysis since the court has no facts of the prior conviction to indicate for itself under that analysis whether the conduct is similar enough or whether . . . it would be more prejudicial than probative.

In overruling defendants objection, the court stated: Evidence Code section 1109, [subdivision] (c) says this section shall not be construed to limit or preclude the admission or consideration of evidence under any other statute [or] case law. It seems to me that the prior 2002 conviction would certainly fall under [Evidence Code section] 1109 evidence. Id allow that to be used. It seems to me that if the District Attorney instead of having live testimony with regard to that incident they want to prove up that incident through the use of Evidence Code section 452.5, that they would be allowed to do that [by] certified copy, so it would be admitted.

Defendant now contends that the trial court improperly permitted the People to introduce evidence regarding [defendants] prior conviction for domestic violence, based on nothing more than the fact of the conviction itself. In doing so, the trial court violated both the letter and the spirit of the statute authorizing the introduction of evidence of such prior convictions as a limited exception to the rule against introduction of propensity evidence and violated [defendants] right to due process. Specifically, the introduction of the bare fact of the conviction, unaccompanied by any facts regarding the prior incident, prevented the trial court from conducting the weighing process that is not only contemplated by the statute, but essential to the constitutionality of that statute.

Evidence Code section 140 defines evidence as testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact. Evidence Code section 1109, subdivision (a)(1), provides in pertinent part that, in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendants commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352. Evidence Code section 1109 allows the introduction of evidence of [a] defendants commission of prior acts of domestic violence in a criminal action charging [the] defendant with an offense involving domestic violence. (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138.) Since Evidence Code section 1109 does not limit the type of evidence that may be admitted to prove defendants commission of prior acts of domestic violence to live testimony, it includes writings, or other things, such as court records. (Evid. Code, 140; cf. People v. Wesson (2006) 138 Cal.App.4th 959, 969.) Additionally, Evidence Code section 452.5[4] states a new hearsay exception for certified official records of conviction, which may be offered to prove not only the fact of a conviction, but the commission of the underlying offense. (People v. Duran (2002) 97 Cal.App.4th 1448, 1461.) Accordingly, the trial court did not violate either the letter or the spirit of Evidence Code section 1109 by permitting the prosecutor to introduce the court records regarding defendants 2002 domestic violence conviction.

The admission of evidence under Evidence Code section 1109 is explicitly subject to Evidence Code section 352. (Evid. Code, 1109, subd. (a)(1).) Evidence Code section 352 states that [t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. The trial court need not expressly describe the process by which it concluded that the probative value of the evidence outweighed its prejudicial impact. (People v. Catlin (2001) 26 Cal.4th 81, 122.) The court is not required to engage in an on-the-record evaluation of the factors affecting the weighing process, . . . (People v. Holt (1984) 37 Cal.3d 436, 453.) The record must show only that the court performed its obligations. (People v. Mendoza (2000) 24 Cal.4th 130, 178.) The discussion on the record in this case regarding the factors to be considered in an Evidence Code section 352 analysis indicates that the court was well aware of its obligations regarding admission of this evidence and exercised its discretion to admit the evidence.

It is well established that the trial courts discretion under Evidence Code section 352 is broad. A trial court abuses its discretion in admitting evidence only where the probative value of the evidence is insignificant and the prejudicial impact is quite substantial. (See People v. Harris (1998) 60 Cal.App.4th 727, 737-741.) An appellate court will not overturn a trial courts exercise of its discretion in the absence of manifest abuse or upon a finding that the trial court did not appear to understand and fulfill its duties. (People v. Williams (1997) 16 Cal.4th 153, 213; People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.) We find no such abuse of discretion on the record before us. The prior conviction was relevant Evidence Code section 1109 evidence, and presentation of the evidence did not necessitate an undue consumption of time or create a substantial danger of undue prejudice.

Cumulative Error

Defendant contends that, even if this court rejects the above individual contentions, the cumulative effect of the alleged errors deprived him of a fair trial. The due process clause of the Fourteenth Amendment to the United States Constitution entitles defendant to a fair trial, but not a perfect one. (People v. Osband (1996) 13 Cal.4th 622, 702; People v. Hill (1998) 17 Cal.4th 800, 844.) Our state Supreme Court has explained that it will not reverse a judgment absent a clear showing of a miscarriage of justice. (People v. Hill, supra, 17 Cal.4th at p. 844.) Here, in light of the jury verdicts, including the jurys finding that defendant did not inflict great bodily injury, and of our analysis of defendants contentions, we are convinced that defendant had a fair trial. Accordingly, we find his claim of cumulative error to be without merit.

Prior Strikes

At the court trial on defendants prior allegations, the prosecutor submitted a section 969b packet, which was admitted into evidence as exhibit 11. The exhibit includes an abstract of judgment indicating that defendant was convicted by plea on July 19, 1990, of two counts of violating section 245, subdivision (a)(1), Assault w/deadly weapon, and was sentenced to two years in state prison on September 25, 1990. No other evidence other than a fingerprint card was submitted to prove that the offenses constituted serious felonies and thus strikes. However, the court found that the section 245, subdivision (a)(1) convictions qualified as serious felonies and strikes under section 1192.7.

Defendant now contends that there is insufficient evidence to support the trial courts finding that he had suffered two prior serious felony convictions and strikes within the meaning of sections 1192.7 and 1170.12. He argues that the abstract of judgment regarding his two 1990 convictions under section 245, subdivision (a)(1), failed to establish the personal use of a deadly weapon or infliction of great bodily injury that is required to sustain such findings. Accordingly, he argues that the matter must be remanded for resentencing.

In order to qualify as a strike, the Three Strikes law requires that the prior offense be a violent felony as defined in section 667.5, subdivision (c), or a serious felony as defined in section 1192.7, subdivision (c). ( 1170.12, subd. (b)(1).) Section 1192.7, subdivision (c)(31), specifically lists assault with a deadly weapon . . . in violation of Section 245 as a serious felony. Thus, [a] conviction for assault with a deadly weapon under section 245, subdivision (a)(1) . . . qualifies as a serious felony whether or not the defendant was convicted as a direct perpetrator or as an aider and abettor. [Citation.] (People v. Banuelos (2005) 130 Cal.App.4th 601, 605 (Banuelos).) However, a conviction of assault by means likely to cause great bodily injury is not a serious felony unless it also involves the use of a deadly weapon or actually results in the personal inflicting of great bodily injury. [Citations.] (Ibid.)

Defendant argues that the reference to his crime as Assault w/deadly weapon on the abstract of judgment is ambiguous, and thus is insufficient evidence to support the finding that his conviction was for assault with a deadly weapon. He cites Banuelos in support of his claim. In that case, the abstract of judgment was the only document presented to prove the nature of the defendants prior conviction of violating section 245, subdivision (a)(1). The abstract of judgment listed the offense as ASSAULT GBI W/DEADLY WEAPON. (Banuelos, supra, 130 Cal.App.4th at p. 605.) The appellate court found that designation to be ambiguous: Although the notation 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)assault by means of force likely to produce great bodily injury or with a deadly weapon. (Id. at p. 606.) The court therefore found that there was not substantial evidence that a deadly weapon was in fact used during the commission of the offense. (Ibid.)

The Banuelos court acknowledged that a contrary result was reached in People v. Luna (2003) 113 Cal.App.4th 395. In that case, the abstract of judgment submitted to prove the nature of the defendants prior section 245, subdivision (a)(1) conviction listed the offense as ASSLT GBI W/DLY WPN. (Id. at p. 397.) The appellate court found that the abstract of judgment constituted substantial evidence that the defendant was previously convicted of assault with a deadly weapon as described in section 1192.7, subdivision (c)(31). (Id. at pp. 398-399.)

In this case, the abstract of judgment submitted to prove the nature of defendants prior section 245, subdivision (a)(1) conviction lists the offense as Assault w/deadly weapon. Unlike in Banuelos, the designation of the conviction on the abstract of judgment in this case is not ambiguous; it cannot be read to mean that the assault was with a deadly weapon and/or by force likely to produce great bodily injury. Rather, the abstract of judgment can only be read to mean that the assault was with a deadly weapon. Accordingly, the abstract of judgment constituted substantial evidence that defendant was previously convicted of assault with a deadly weapon as described in section 1192.7, subdivision (c)(31). The trial courts findings that defendant has two prior serious felonies that also constituted strikes will not be set aside.

DISPOSITION

The judgment is affirmed.

_______________________________________________________

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

__________________________

MIHARA, J.

_________________________

duffy, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line Lawyers.

[1]Further statutory references are to the Penal Code unless otherwise specified.

[2]Nicholss mother had entered the home by forcing open the locked front door, breaking the door frame.

[3]CALCRIM No. 3475 states: The (owner/lawful occupant) of a (home/

property) may request a trespasser leave the (home/property). If the trespasser does not leave within a reasonable time and it would appear to a reasonable person that the trespasser poses a threat to (the home/property) [or] the (owner/occupants), the (owner/

lawful occupant) may use reasonable force to make the trespasser leave. [] Reasonable force means the amount of force that a reasonable person in the same situation would believe is necessary to make the trespasser leave. [] [If the trespasser resists, the (owner/lawful occupant) may increase the amount of force he or she uses in proportion to the force used by the trespasser and the threat the trespasser poses to the property.] [] When deciding whether the defendant used reasonable force, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendants beliefs were reasonable, the danger does not need to have actually existed. [] The People have the burden of proving beyond a reasonable doubt that the defendant used more force than was reasonable. If the People have not met this burden, you must find the defendant not guilty of _______.

[4]Evidence Code section 452.5, subdivision (b) states: An official record of conviction certified in accordance with subdivision (a) of Section 1530 is admissible pursuant to Section 1280 to prove the commission, attempted commission, or solicitation of a criminal offense, prior conviction, service of a prison term, or other action, condition, or event recorded by the record.