P. v. Chatman

Filed 9/13/06 P. v. Chatman 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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, Frank A. Brown, Judge. Affirmed.

Michael Elliott Chatman pled no contest to charges of transportation of cocaine base (Health & Saf. Code, § 11352, subd. (a); count one), and possession of cocaine base for sale (Health & Saf. Code, § 11351.5; count two.) He also admitted he had a prior drug conviction (Health & Saf. Code, § 11370.2, subd. (a)), one prior conviction for battery with serious bodily injury (Pen. Code, §§ 243, subd. (d) ^[1]; 667, subd. (b)-(i), 1170.12, and three other prior prison convictions (Pen. Code, § 667, subd. (b)^[2].) Chatman agreed to allow the sentencing judge to determine the existence of any fact in aggravation under a Blakely waiver. (Blakely v. Washington (2004) 542 U.S. 296, 301.)

The court sentenced Chatman to the upper term of 5 years in prison on count one, and doubled it to 10 years based on the prior battery conviction, which it found was a strike. It also stayed imposition of punishment on count two (§ 654) and dismissed the drug prior and the three other prison prior convictions.

Chatman contends the trial court (1) erred in finding his prior battery conviction was a strike; and (2) violated his right to a jury trial and the protections against double jeopardy. We affirm.

FACTS

The central facts relevant to the disposition of this appeal are those underlying Chatman's prior battery conviction. We summarize information from one of the probation reports in the record. It states that in 1994, Chatman went to a hotel to get his belongings from a hotel occupant. The manager, Gloria Black, informed Chatman she could not open the room without the occupant's permission. Chatman insulted the manager, who in turn insulted him. Chatman "grabbed the manager by her shirt, pulled her towards him, and then pushed her down a short flight of stairs. She struck her head on the wall at the bottom of the stairs and almost lost consciousness. Her right hand was fractured at the wrist, her left arm was broken, and her forehead was severely injured. She required 31 stitches to her forehead and her nose." Chatman, pursuant to People v. West (1970) 3 Cal.3d 595 (West), pled guilty to the charge that he "did willfully and unlawfully use force and violence upon the person of Gloria Black resulting in the infliction of serious bodily injury on such person, in violation of [section 243(d)]." He was sentenced to three years in prison for this crime.

DISCUSSION

I.

We preliminarily address Chatman's claim that the trial court impermissibly engaged in fact finding to determine that his battery against Black was a strike. The trial court relied on the facts we summarized above from the probation report. The court commented at sentencing, "I've read all the things, both sides. I think it's a strike. You know, serious bodily injury. We're talking at least two fractures; we're talking about a wide scar on her -- is it forehead? She got tossed down some stairs. I think it's a strike." Chatman objected that the court's finding lacked a factual basis because the court relied on the probation report that contained both Chatman's and the victim's differing accounts of the battery; and the parties did not stipulate to the use of the probation report. The court ruled the battery qualified as a strike.

The parties stipulated the trial court could use the "investigative reports" and the preliminary hearing transcript to determine whether the battery conviction qualified as

a strike. On this record, the only documents that reasonably could be characterized as "investigative reports" were Chatman's probation reports. The probation officer's investigations regarding the battery drew from several sources, including the arrest report, the preliminary hearing transcript report, and interviews with Chatman and Black. Accordingly, we reject Chatman's contention there was no stipulation regarding the court's use of the probation report.

"California law specifies that in [determining whether the prior conviction qualified as a conviction of a serious felony] the inquiry is a limited one and must be based upon the record of the prior criminal proceeding with a focus on the elements of the offense of which the defendant was convicted. If the enumeration of the elements of the offense does not resolve the issue, an examination of the record of the earlier proceeding is required in order to ascertain whether that record reveals whether the conviction realistically may have been based on conduct that would not constitute a serious felony under California law." (People v. McGee (2006) 38 Cal.4th 682, 706.)

"Determining whether a prior conviction qualifies as a strike under the Three Strikes law is also the type of inquiry that judges traditionally perform as part of the sentencing function. Often this determination is purely legal with no factual content whatever." (People v. Kelii (1999) 21 Cal.4th 452, 456.) When the determination of a strike involves a factual inquiry, the fact finder may "look to the entire record of the conviction." (Id.; People v. Guerrero (1988) 44 Cal.3d 343, 352; accord People v. Abarca (1991) 233 Cal.App.3d 1347, 1350 [listing the contents of the record, including probation reports].)

"The trier of fact considers only court documents. It is true that sometimes the trier of fact must draw inferences from transcripts of testimony or other parts of the prior conviction record. [Citations.] . . . [S]uch facts generally are readily ascertainable upon an examination of court documents. This is the type of inquiry traditionally performed by judges as part of the sentencing function." (Kelli, supra, 21 Cal.4th at p. 457.)

Here, the complaint relating to the prior conviction specified that Chatman used unlawful force to inflict "serious bodily injury" on the victim. He pled guilty, and his plea demonstrates that he not only knew of the violation but also was prepared to admit each of its elements. (West, supra, 3 Cal.3d 595 at p. 612.) Chatman also admitted to the prior conviction in the underlying drug claim. The court, in evaluating this information, made "an inquiry that is quite different from the resolution of the issues submitted to a jury, and is one more typically and appropriately undertaken by a court." (McGee, supra, 38 Cal.4th 682, at pp. 706.) The court did not err in consulting the probation report. It is readily apparent the court's comments at sentencing referred only to the portion of the report that established the degree of harm the victim suffered.

Chatman also contends Guerrero is no longer good law and we should not follow it because the United States Supreme Court has held that a trial court may only consider "the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information." (Shephard v. United States (2005) 544 U.S. 13,.)

During the pendency of this appeal, the California Supreme Court affirmed the ongoing validity of Guerrero in McGee, supra, 38 Cal.4th 682 and pointed out: "In People v. Guerrero, supra, 44 Cal.3d 343, we were 'not called on to resolve such questions as what items in the record of conviction are admissible . . .' and therefore declined to address the issue. [Citations.] Nor is that issue presented here; as is typically the case, the record of defendant's prior robbery convictions does not contain conflicting documentary proof." (McGee, supra, at p. 692, fn. 4.)

Chatman, relying on Shepard, claims a jury and not the court should have determined whether his prior conviction qualified as a strike. In McGee the court dismissed this argument. It first summarized the issue in Shepard as follows: "In Shepard, the high court addressed whether, under the federal Armed Career Criminal Act (ACCA) (18 U.S.C., § 924 (e)), a sentencing court may look to police reports or complaint applications in determining whether a guilty plea in an earlier criminal proceeding formed the basis for a conviction of 'generic' burglary, qualifying the defendant for a minimum 15-year prison sentence under the ACCA." (McGee, supra, at p. 707.) The court continued, "Although the Shepard decision may suggest that a majority of the high court would view the legal issue presented in the case before us as presenting a serious constitutional issue, the high court's decision did not purport to resolve that issue. The issue before the high court in Shepard was resolved as a matter of statutory interpretation and the court did not purport to decide whether a state is constitutionally precluded from permitting a court to conduct the kind of examination of the record of a prior criminal proceeding . . . in determining whether a conviction constitutes a qualifying prior conviction for purposes of enhancement under a state sentencing statute." (McGee, supra, 38 Cal.4th 682, at p. 708.) The Court concluded, "Shepard does not provide the type of clear resolution of the issue that would justify overturning the relevant California precedents." (McGee, supra, at p. 708.)

II.

We reject Chatman's interpretation of People v. Taylor (2004) 118 Cal.App.4th 11 (Taylor), which he claims supports his contention that his prior conviction for "unenhanced" battery with serious bodily injury did not qualify as a strike within the meaning of section 667.5, subdivision (c)(8) because the prosecution did not plead or prove, and he did not admit, a great bodily injury enhancement.

Chatman concedes that People v. Moore (1992) 38 Cal.4th 682, 1871 (Moore) held that "The element of 'serious bodily injury,' as required for felony battery, is essentially equivalent to or synonymous with 'great bodily injury' for the purpose of a 'serious felony' sentence enhancement pursuant to Penal Code sections 667, subdivisions (a) and (d), and 1192.7, subdivision (c)(8)." (Accord, People v. Burroughs (1984) 35 Cal.3d 824, 831, overruled on another ground in People v. Blakeley (2000) 23 Cal.4th 82, 89.) However, Chatman relies on Taylor for his argument that, "the analysis in Moore, supra, at p. 1871 is flawed and should not be followed by this court."

In Taylor, the trial court made what amounted to a legal determination that the defendant had in fact inflicted great bodily injury on the victim, although the jury specifically found to the contrary, and the jury was not told the two terms had the same meaning. (Taylor, supra, 118 Cal.App.4th, at pp. 26, 27.) Taylor is inapplicable here given that the facts underlying Chatman's conviction for battery are not analogous to those in Taylor. "In the absence of any contrary indication in the record, the trial court in Moore was justified in applying the usual assumption that 'great bodily injury' and 'serious bodily injury' are 'essentially equivalent.'" (Taylor, supra, at p. 26.) In short, Taylor did not disregard Moore's analysis; it simply found it inapplicable to Taylor's specific facts. Instead, we are bound by People v. Burroughs, supra, 35 Cal.3d, at p. 831 ["[W]e acknowledge that 'serious bodily injury' and 'great bodily injury' are essentially equivalent elements"]. (Accord Moore, supra, 38 Cal.4th 682, at p. 1871.)

California's "Three Strikes" law (§§ 667, subd. (b)-(i), 1170.12) provides longer sentences for persons convicted of a felony who have been previously convicted of a violent felony, as defined in section 667.5, subdivision (c), or a serious felony, as defined in section 1192.7, subdivision (c). A prior conviction that qualifies as a violent or serious felony is commonly known as a "strike." (People v. Barragan (2004) 32 Cal.4th 236, 239.) A defendant convicted of a felony who has one or more strikes must be sentenced for the current offense under the Three Strikes law. (§§ 667, subd. (f)(1), 1170.12, subd. (d)(1).) 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. (§ 667, subd. (a)(1).) (People v. Rodriguez (2004) 122 Cal.App.4th 121, 129.) The statute governing Chatman's prior conviction states, " 'Serious bodily injury' means a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness, concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement." (§ 243, subd. (f)(4).) In this case, the court did not err in finding the battery was a serious felony.

III.

Chatman relies on recent United States Supreme court cases for his contention that his Sixth Amendment right to a jury trial was violated because the court, and not a jury, determined the elements of his prior conviction. (Blakely v. Washington (2004) 542 U.S. 296 (Blakely); Apprendi v. New Jersey (2000) 530 U.S. 446 (Apprendi); Shephard, supra, 544 U.S. 13.) We disagree.

The California Supreme Court distinguished those cases and held the upper term is the " 'prescribed statutory maximum,' " as that term is used in [Apprendi] and [Blakely], and therefore the imposition of an upper term based on facts found by the judge, rather than by the jury, does not " 'increase[ ] the penalty for a crime beyond [this]

maximum. . . . ' " (Blakely, supra, 542 U.S. at p. 301, quoting Apprendi, supra, 530 U.S. at p. 490.) Accordingly, "the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence . . . does not implicate a defendant's Sixth Amendment right to a jury trial." (People v. Black (2005) 35 Cal.4th 1238, 1244.)

IV.

Chatman contends -- based on his belief the trial court impermissibly engaged in additional fact finding -- that the trial court's sentencing determination relied on information other than the bare fact of his prior conviction, in violation of the double jeopardy clause. As we discussed above, the trial court committed no error in analyzing Chatman's prior conviction to determine whether it qualified as a strike.

Chatman's reliance on People v. Seel (2004) 34 Cal.4th 535, 548-550 is misplaced. That case concluded Apprendi is relevant to determining whether a finding of evidentiary insufficiency bars retrial of a premeditation allegation under section 664(a).^[3] But it also distinguished such an allegation, which is relevant to the intent element of the crime, from a prior conviction allegation. The Seel court stated, "Significantly, unlike the sentence enhancements at issue in [Monge v. California (1997) 16 Cal.4th 826 and Almendarez-Torres (1998) 523 U.S. 224], section 664(a) does not involve a defendant's recidivism, which is a 'traditional, if not the most traditional basis for a sentencing court's increasing an offender's sentence.' [Citations.] The high court made clear that recidivism is different for constitutional purposes." (Seel, supra, at pp. 548-549.) Here, the trial court's inquiry related to the issue of recidivism; therefore, the double jeopardy clause was not violated.

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

IRION, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

^[1] Penal Code section 243, subd. (d) states, "When a battery is committed against any person and serious bodily injury is inflicted on the person, the battery is punishable by imprisonment in a county jail not exceeding one year or imprisonment in the state prison for two, three, or four years."

^[2] All further statutory references are to the Penal Code unless otherwise stated.

^[3] "As relevant here, section 664(a) provides that a defendant convicted of attempted murder is subject to a sentence of life with the possibility of parole if the jury finds that the attempted murder was 'willful, deliberate, and premeditated murder, as defined in section 189." (Seel, supra, 34 Cal.4th at p. 541.)