P. v. Frasier

Filed 7/13/06 P. v. Frasier CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Esteban Hernandez, Judge. Affirmed in part, reversed in part.

I.

INTRODUCTION

Defendant Marion Frasier appeals from a final judgment in a criminal proceeding following a jury trial in which he was convicted of assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)).^[1] In a separate proceeding, the trial

court found true the special allegation that Frasier had suffered a prior serious felony under section 667, subdivision (a)(1) and a "strike" conviction within the meaning of sections 667, subdivisions (b) through (i), 668 and 1170.12. Frasier challenges the sufficiency of the evidence used to prove that his prior robbery conviction in Georgia constituted a serious felony and a strike under California law. Specially, Frasier contends that the crime of robbery in Georgia does not share the same intent element as is required for a conviction for robbery in California, and that the record of his prior conviction does not establish that he had the intent required under California law to be convicted of robbery. We agree that the record of Frasier's prior conviction is insufficient to support a finding that the prior conviction constitutes a serious felony. We therefore reverse the trial court's finding that Frasier suffered a prior serious felony and a prior strike conviction, and remand for a retrial on the prior serious felony allegation.^[2]

II.

PROCEDURAL AND FACTUAL BACKGROUND

A. Procedural background

On August 31, 2004, the San Diego County District Attorney filed a second amended information charging Frasier with assault by means of force likely to produce great bodily injury and alleging that Frasier personally inflicted great bodily injury on the victim within the meaning of sections 12022.7 or 12022.8.^[3] The information also alleged that Frasier had suffered a prison prior within the meaning of sections 667.5, subdivision (b) and 668; a serious felony prior within the meaning of sections 667, subdivision (a)(1), 668, and 1192, subdivision (c); and a strike prior within the meaning of section 667, subdivisions (b) through (i), 668, and 1170.12. The allegation of a serious felony prior was based on a robbery conviction Frasier suffered in Georgia in 1994.

Frasier waived his right to have a jury decide the truth of the prior conviction allegations. On September 9, 2004, the jury found Frasier guilty of assault by means of force likely to produce great bodily injury and found true the allegation that Frasier had personally inflicted great bodily injury on the victim.

In a bifurcated proceeding, the trial court found the alleged prior convictions to be true, and also found that the Georgia robbery conviction constituted a strike and a serious felony. At the sentencing hearing, the court denied Frasier's motion to strike the strike prior in the interests of justice, and sentenced Frasier to a total of 15 years in state prison. The sentence included the middle term of three years for the assault offense, doubled as a result of the strike prior, an additional three years for the enhancement for personal infliction of great bodily injury, five years for the serious felony enhancement, and one year for the prior prison term enhancement.

Frasier filed a timely notice of appeal on June 15, 2005.

B. Frasier's conviction for assault with force likely to produce great bodily injury

Because the facts underlying Frasier's most recent conviction are generally irrelevant to the issues Frasier raises on appeal, we provide an abbreviated version of those facts. On November 1, 2003, Frasier met Toni Johnson and the two purchased $60 worth of cocaine. Frasier and Johnson took a taxicab to a hotel, where they rented a room. After Johnson refused to have sex with Frasier, he hit Johnson numerous times on the head and face. Johnson suffered a broken nose, a fractured facial bone, and lacerations.

Frasier testified that he hit Johnson in self-defense after she began swinging her hand at him.

C. Frasier's Georgia robbery conviction

The record of conviction from the Fulton County Superior Court in Georgia establishes that Frasier was indicted by a Fulton County grand jury on allegations that he "did unlawfully, with intent to commit theft, take from the person and immediate presence of Essie Fuller, $30.00 in money and $200.00 worth of food stamps, all of value, and the property of Essie Fuller, by intimidation and by use of a knife, an offensive weapon." On October 3, 1994, Frasier pled guilty to the lesser-included offense of robbery. The court sentenced him to probation.

III.

DISCUSSION

The evidence in the record pertaining to Frasier's Georgia conviction is

insufficient to support a determination that the offense constitutes a serious

felony and a strike under California law

Frasier contends that the trial court should not have used his Georgia robbery conviction to enhance his sentence under the Three Strikes law. He argues that under Georgia law, his conviction for robbery did not require that he have the specific intent to permanently deprive an individual of his or her property ─ an element that is required for a robbery conviction in California. Frasier asserts that his robbery conviction in Georgia thus cannot constitute a serious felony and strike under California law.

A. Procedural background

On September 9, 2005, after Frasier was convicted of assault by means of force likely to produce great bodily injury, the court held a bench trial regarding Frasier's prior convictions. Defense counsel submitted a brief in which he argued that Frasier's Georgia robbery conviction could not be considered a strike under the Three Strikes law. The prosecution disputed this claim, and offered in evidence certified documents from the Georgia court. These documents included an indictment that alleged that Frasier unlawfully took $30 in cash and $200 in food stamps from Essie Fuller by intimidation and use of a knife, and a judgment that established that Frasier pled guilty to the lesser included offense of robbery. These documents were admitted in evidence without objection.

After hearing oral argument, the trial court concluded that under the least adjudicated elements test, Frasier's Georgia robbery conviction qualified as a prior serious felony and a strike conviction.

B. Standard of review

We review Frasier's sufficiency challenge to the trial court's serious felony finding "in accordance with the usual rules on appeal (People v. Ochoa [(1993) 6 Cal.4th 1199, 1206])" applicable to such challenges. (People v. Cortez (1999) 73 Cal.App.4th 276, 279.) In People v. Ochoa, the Supreme Court articulated those rules as follows:

"'The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]

"Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]' [Citation.]" (People v. Ochoa, supra, 6 Cal.4th at p. 1206.)

C. Analysis

1. There is insufficient evidence in the record of the prior conviction to

enable the court to determine whether the offense constitutes a strike

Under section 667, subdivision (d)(2), a "prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense that includes all of the elements of the particular felony as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7."^[4] "A defendant convicted of a felony who has one or more strikes must be sentenced for the current offense under the Three Strikes law." (People v. Rodriguez, supra, 122 Cal.App.4th at p. 128.) "When a person has been convicted of a serious felony, an additional five year prison term must be imposed for any prior conviction that qualifies as a serious felony." (Rodriguez, supra, 122 Cal.App.4th at p. 128.)

A conviction from another jurisdiction is considered a strike "if it contains all of the elements required for a crime to be deemed a serious or violent felony in this state." (People v. Rodriguez, supra, 122 Cal.App.4th at p. 128.) A conviction from another jurisdiction "qualifies for the five-year enhancement under section 667, subdivision (a)(1) if it includes all of the elements of a serious felony." (People v. Rodriguez, supra, 122 Cal.App.4th at p. 128.) The prosecution must prove beyond a reasonable doubt each element of a prior conviction that is used to enhance a defendant's sentence. (Ibid.)

In determining the nature of a prior conviction for purposes of the Three Strikes law and other enhancement laws, "the court may look to the entire record of the conviction to determine the substance of the prior foreign conviction . . . ." (People v. Guerrero (1988) 44 Cal.3d 343, 354-355 (Guerrero).) However, "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 foreign law." (Ibid.)

"In California, robbery is a serious felony that qualifies as a prior strike and requires a five year sentencing enhancement. (§§ 1192.7, subd. (c)(19), 667, subd. (a)(1), (4).)" (People v. Rodriguez, supra, 122 Cal.App.4th at p. 129.) Robbery is defined as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) Under California law, robbery requires a specific intent to permanently deprive another person of property. (People v. McGee (2006) 38 Cal.4th 682, 688 (McGee).)

In the Georgia case, Frasier was charged with armed robbery under Official Code of Georgia section 16-8-41, which provides in pertinent part:

"(a) A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon. The offense of robbery by intimidation shall be a lesser included offense in the offense of armed robbery."

Frasier ultimately pled guilty to the lesser included offense of robbery under Official Code of Georgia section 16-8-40, which provides in pertinent part:

"(a) A person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another:

(1) By use of force;

(2) By intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or to another; or

(3) By sudden snatching."

Under Georgia law, "theft by taking," which is the intent element of the offense of robbery, occurs when a person "unlawfully takes, or being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated." (O.C.G.A., § 16-8-2.) To "deprive" is "(A) To withhold property of another permanently or temporarily; or (B) To dispose of the property so as to make it unlikely that the owner will recover it." (O.C.G.A., § 16-8-1.)

The parties agree that the elements of robbery under California law differ from the elements of robbery under Georgia law in that under California law, robbery requires a specific criminal intent to permanently deprive another person of property, whereas under Georgia law, robbery requires the intent to permanently or temporarily deprive another person of property. Thus, it is theoretically possible that Frasier's Georgia conviction involved conduct that would not constitute robbery under California law. (See McGee, supra, 38 Cal.4th at p. 688.) The court must therefore look to the record of the Georgia conviction to determine whether it constitutes a qualifying felony for purposes of the relevant California sentencing statutes.^[5] (Guerrero, supra, 44 Cal.3d at pp. 354-355.)

The record of conviction from the Georgia case that the People offered as evidence in this case includes an accusatory pleading, fingerprint documents, and a judgment indicating that Frasier pled guilty to robbery, a lesser-included offense of the offense charged in the accusatory pleading. The only facts about the conduct underlying Frasier's conviction are provided in the indictment, which charges Frasier with armed robbery and alleges that he "did unlawfully, with intent to commit theft, take from the person and immediate presence of Essie Fuller, $30.00 in money and $200.00 worth of food stamps, all of value, and the property of Essie Fuller, by intimidation and by use of a knife, an offensive weapon."

Frasier pled guilty to robbery, not armed robbery as originally charged. The document that establishes that Frasier pled guilty to robbery is a document of judgment that does not set forth any of the facts on which Frasier's guilty plea was based. The People nevertheless assert that the record of the Georgia conviction demonstrates that the Georgia court struck only the armed element of the armed robbery charge, and that by pleading guilty, Frasier essentially admitted to all of the other facts alleged in the indictment. However, there is nothing in the record of the Georgia conviction that establishes that Frasier adopted or admitted any of the facts alleged in the original charging document.

If the record contained an amended charging document to which Frasier pled guilty, or if it contained any statements or admissions by Frasier regarding the factual basis of his guilty plea, there might be sufficient information regarding Frasier's actual conduct in carrying out the offense to which he pled guilty to enable us to determine whether the elements of that offense make the offense of a serious felony or a strike under California law. However, because Frasier pled guilty to an offense different from the one charged in the indictment, the indictment adds nothing useful to the determination of the conduct underlying the offense. (See People v. Jones (1999) 75 Cal.App.4th 616, 634 ["we note that the charges apparently contained in the indictment do not establish the nature of his conduct; appellant did not plead guilty to the charges as stated in the indictment"]; People v. Reynolds (1989) 211 Cal.App.3d 382, 390 [reference in record of conviction to a conviction for an included offense of the crime charged in the information or indictment "cannot unambiguously incorporate any specific elemental fact enunciated in the information or indictment"].)

The prosecution was entitled to use the entire record of Frasier's 1994 conviction to prove that he had in fact taken property from the victim with the intent to permanently deprive the victim of the property. (Guerrero, supra, 44 Cal.3d at pp. 355-356.) However, the minimal record of the prior conviction that the People offered in evidence in this case does not prove that Frasier took property from the victim of that crime intending to permanently deprive her of the property. The record of the Georgia offense that the People offered did not contain admissible evidence establishing the facts of the prior offense. Thus, the trial court was required to presume that the prior conviction was for the least offense punishable under Georgia law. That offense would not constitute a serious felony strike, since the intent element would be an intent to temporarily deprive the victim of his or her property. (See Guerrero, supra, 44 Cal.3d at p. 355; see also People v. Myers (1993) 5 Cal.4th 1193, 1200.)

The People contend that People v. Riel (2000) 22 Cal.4th 1153 (Riel), supports the trial court's conclusion in this case. In Riel, the Supreme Court concluded that even if the Washington statute under which the defendant was convicted of burglary required only an intent to take property temporarily,^[6] under the facts established by the record of conviction, the jury that determined that Riel had suffered a prior strike offense could reasonably have found that he did not intend to take the property temporarily and that his conduct thus met the requirements of a serious felony under California law. The Court concluded, "One normally takes liquor to drink or otherwise dispose of it, not merely to possess it temporarily." (Id. at p. 1206.)

The People maintain that we may reach the same conclusion here. In Riel, however, the record of conviction included the defendant's personal admissions to the facts underlying his conviction. (Riel, supra, 22 Cal.4th at p. 1205.) The Supreme Court noted:

"The record of the Washington convictions contains a brief description of the crimes that defendant made as part of his guilty pleas. As to the first burglary, he stated that in November 1981, he broke into a liquor store and 'took several bottles of booze.' As to the second burglary, he stated that he '[w]ent into Papa Joe's and toke [sic: obviously, took] some liquor after it had closed.' " (Ibid., internal brackets and errors in original.)

Thus, in Riel, the court's factual determinations were based on specific factual admissions made by the defendant and were included in the prior conviction record. (Riel, supra, 22 Cal.4th at p. 1205.) Here, the Georgia record of conviction does not contain any factual

admissions by Frasier. For this reason, we cannot determine whether Frasier committed the Georgia robbery in a manner that would constitute a serious felony and a strike under California law.

"On an appellate challenge to a finding that a prior conviction was a strike, where the prior conviction is for an offense that can be committed in multiple ways, one or more of which would not qualify it as a strike, and if it cannot be determined from the record that the offense was committed in a way that would make it a strike, a reviewing court must presume the offense was not a strike." (People v. Watts (2005) 131 Cal.App.4th 589, 596.) We must therefore presume that Frasier's Georgia offense was not a serious felony.

2. The prior strike allegation may be retried

It is appropriate to remand the matter to give the People an opportunity to retry the serious felony and strike allegation since "[t]here is no double jeopardy bar to a retrial on a prior conviction allegation in a noncapital sentencing proceeding." (People v. Cortez, supra, 73 Cal.App.4th at p. 284, fn. 7, citing Monge v. California (1998) 524 U.S. 721, 724-734, People v. Monge (1997) 16 Cal.4th 826, 829, 831-845, People v. Houck (1998) 66 Cal.App.4th 350, 358; see, e.g., People v. Watts, supra, 131 Cal.App.4th at p. 597; People v. Barragan, supra, 32 Cal.4th 236 [concluding that retrial of a strike allegation is permissible where a trier of fact finds the allegation to be true, but an appellate court reverses that finding for insufficient evidence]; People v. Cortez, supra, 73 Cal.App.4th at pp. 283-284 [remanding for retrial on strike allegation proper where guilty plea to prior charged offense provided insufficient evidence to support true finding].)^[7]

IV.

DISPOSITION

The judgment of the trial court is affirmed with the exception of the trial court's true finding as to the allegation that Frasier suffered a prior serious felony and a strike conviction. The court's true findings as to the prior serious felony and the strike conviction are reversed, and Frasier's sentence is vacated. The matter is remanded for a new trial as to the prior serious felony and strike conviction allegations, a new sentencing hearing, and any further proceedings not inconsistent with this opinion.

AARON, J.

WE CONCUR:

HUFFMAN, Acting P. J.

HALLER, J.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Real Estate Lawyers.

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

^[2] A prior conviction that qualifies as a violent or serious felony constitutes a strike under section 667, subdivisions (b) through (i). Therefore, a finding that a prior felony constitutes a "serious felony" under section 667, subdivisions (a)(1) through (d)(5) means that the prior conviction also constitutes a strike under section 667, subdivisions (b) through (i).

^[3] The information also alleged five rape-related counts. However, the jury acquitted Frasier on these counts.

^[4] "A prior conviction that qualifies as a violent or serious felony is commonly known as a 'strike.'" (People v. Rodriguez (2004) 122 Cal.App.4th 121, 128, citing People v. Barragan (2004) 32 Cal.4th 236, 239.)

^[5] The Supreme Court recently held that a defendant does not have a right to have a jury decide whether prior out-of-state convictions qualify as strikes under California law. (McGee, supra, 38 Cal.4th at p. 709.)

^[6] The Supreme Court also independently determined that at the time of Riel's offense, Washington law required the intent to deprive permanently, such that the Washington offense contained the same elements as required under California law. (Riel, supra, 22 Cal.4th at p. 1206.)

^[7] In situations in which the defendant received the maximum possible sentence and the trial court cannot, on remand, impose a sentence greater than the original sentence, federal due process and state double jeopardy considerations based on the potential imposition of a greater sentence are not implicated. (People v. Cortez, supra, 73 Cal.App.4th at p. 284, citing People v. Craig (1998) 66 Cal.App.4th 1444, 1449-1452 and People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311-1312.)