P. v. Pringle











Filed 8/1/12 P. v.
Pringle CA3











NOT
TO BE PUBLISHED







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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Lassen)

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>

THE PEOPLE, Plaintiff and Respondent, v. JEFFREY JAMES PRINGLE, Defendant and Appellant.

C068368 (Super. Ct. No. CR027518)

Defendant Jeffrey
James Pringle was convicted of burglary
and receiving stolen property. The
trial court sentenced him to six years in prison (three years doubled under California’s
three strikes law based on a strike).

Defendant contends
(1) he did not admit that his prior out-of-state conviction constituted a
strike under California law; (2) even
if he admitted a prior conviction, his admission was not knowing and voluntary;
(3) the record does not support a finding that the prior conviction qualifies
as a strike; and (4) defense counsel was ineffective in failing to
challenge whether the prior conviction constituted a strike.

We agree with
defendant (and the Attorney General) that defendant did not admit a prior
strike conviction. We also agree that
even though defendant waived his right to have the prior strike allegation
determined by trial, there is insufficient evidence in the record to support a
finding that his prior robbery conviction in Maine would constitute a prior
serious felony conviction, and hence a strike, under California law. Accordingly, it is not necessary to address
defendant’s second and fourth contentions.

We will vacate
defendant’s sentence and remand the case to the trial court for further
proceedings.

BACKGROUND

A detailed
recitation of the underlying facts is unnecessary given defendant’s contentions
on appeal. The People charged defendant
in a first amended information with six theft-related counts. It was further alleged that defendant had a
prior “Class A Robbery” conviction in Maine
on January 24, 1994, and
that the prior conviction was for a serious or violent felony. (Pen. Code, § 667, subds. (b)-(i).)href="#_ftn1" name="_ftnref1" title="">[1]

A jury convicted
defendant of burglary (Pen. Code, § 459), receiving
stolen property (§ 496, subd. (a)) and grand theft (§ 487,
subd. (a)). The trial court
sentenced defendant to the upper term of three years in prison on the burglary
conviction, doubled to six years “pursuant to the strike . . . .” The trial court also stayed a three-year term
on the count for receiving stolen property pursuant to section 654 and granted
the prosecution’s motion to dismiss the grand theft conviction.

Defendant’s prior
Maine conviction was discussed only twice on the record. Before trial, defense counsel told the court
that defendant would admit the prior conviction to avoid litigating the issue
in front of the jury. The reporter’s
transcript then recorded the following colloquy:

“THE COURT: Do you understand that you’ve got a right to
a trial on the prior to make the district attorney prove that you committed
that prior conviction‌ Your counsel has
just indicated you want to give up that right
to a trial on the prior conviction; is that right‌

“[DEFENDANT]: Yes, sir.

“THE COURT: Do you give up your right to a trial on the
prior conviction‌

“[DEFENDANT]: Yes, sir.

“THE COURT: Thank-you.”


The trial judge
never asked defendant if he admitted the prior robbery conviction. Instead, the judge moved on to other pretrial
matters. Nevertheless, the minute order
indicated defendant “admits prior conviction on case #93-864 with a conviction
date of 1/24/94 and waives his rights.”

Later, during
trial, defendant testified that he had a prior felony conviction in Maine, but
there was no other evidence regarding the details of that conviction. The trial court had no further discussion
with defendant regarding the prior conviction and never elicited information to
establish that the prior conviction was a serious felony under California law.

DISCUSSION

Defendant contends
he never admitted a prior strike conviction.
The Attorney General agrees, and we do too.

Unless otherwise
provided by law, a defendant must personally enter his plea in open court. (§ 1018; People
v. Hofferber (1977) 70 Cal.App.3d 265, 268.) To find that defendant has admitted a strike,
the trial court must specifically ask the defendant whether he admits the prior
conviction and record the response in the minutes. (§ 1025, subd. (a).)

Defendant
testified at trial that he had a prior robbery conviction in Maine, but he
never admitted that the robbery conviction was a serious felony under
California law, and hence he never admitted a strike for purposes of section
667, subdivisions (b) through (i). The
trial court never asked him for this admission.

The minute order
entry indicating that defendant admitted the prior conviction is not
dispositive. We generally presume that
conflicts between a reporter’s transcript and a clerk’s transcript are clerical
in nature; we resolve conflicts in favor of the reporter's transcript unless
the particular circumstances dictate otherwise.
(In re Merrick V. (2004) 122
Cal.App.4th 235, 249.) Here, the
reporter’s transcript establishes that defendant waived his right to a trial
but did not admit a prior serious felony conviction.

Moreover, although
defendant waived his right to trial on the issue of the prior serious felony
conviction allegation, he contends there is insufficient evidence in the record
to support the trial court’s finding that his prior conviction constitutes a
serious felony under California law. We agree.
Defendant testified that he had a prior robbery conviction, but there
was insufficient evidence establishing that the conviction qualifies as a
strike in California.

DISPOSITION

Defendant’s
sentence is vacated. In all other
respects, the judgment is affirmed. The
matter is remanded to the trial court to permit defendant to admit the prior
serious felony conviction allegation or, in the alternative, to submit to a
trial court determination on that issue.
After the trial court imposes a new sentence, it shall amend the
abstract of the judgment to reflect the new sentence and forward a certified
clear=all >



copy of the amended abstract of judgment to the California href="http://www.mcmillanlaw.com/">Department of Corrections and Rehabilitation.







MAURO , J.







We concur:







BLEASE , Acting P. J.







ROBIE , J.