Filed 6/1/17 P. v. Mao 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


THE PEOPLE,

Plaintiff and Respondent,

v.

NY MAO,

Defendant and Appellant.
H043449
(Santa Clara County
Super. Ct. No. C1372089)

I. INTRODUCTION
Defendant Ny Mao was convicted by plea of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), misdemeanor possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), and misdemeanor resisting an officer (§ 148, subd. (a)(1)). He also admitted that he personally used a dangerous and deadly weapon, a knife, in the commission of the assault (§§ 667, 1192.7). The trial court found true an allegation that defendant had a prior conviction that qualified as a strike (§§ 667, subds. (b)-(i); 1170.12). The court sentenced defendant to four years in prison and ordered him to pay various amounts, including a criminal justice administration fee (“booking fee”) of $129.75 to the City of San Jose.
On appeal, defendant first contends that the evidence was insufficient to support the trial court’s finding that his prior conviction qualifies as a serious felony for purposes of California’s Three Strikes law. We understand defendant to also contend that the court erred in allowing testimony by a retired court clerk regarding how minute orders were filled out. Second, defendant argues that the booking fee of $129.75 imposed by the court must be stricken because there is no evidence of the administrative costs of booking and processing.
For reasons that we will explain, we will affirm the judgment.
II. BACKGROUND
A. The Complaint
In 2013, defendant was charged by complaint with assault with a deadly weapon (§ 245, subd. (a)(1); count 1), possession of a controlled substance (former Health & Saf. Code, § 11377, subd. (a); count 2), misdemeanor possession of controlled substance paraphernalia (former Health & Saf. Code, § 11364.1; count 3), and misdemeanor resisting an officer (§ 148, subd. (a)(1); count 4). The complaint further alleged that defendant personally used a dangerous and deadly weapon, a knife, in the commission of the assault (§§ 667, 1192.7), and that he had a prior serious felony conviction that also qualified as a strike (§§ 667, subds. (a), (b)-(i); 1170.12).
B. The Pleas
In February 2016, on the prosecution’s request, count 2 for possession of a controlled substance was amended to allege a misdemeanor. Defendant pleaded no contest to the amended count and to counts 1 (assault with a deadly weapon) and 4 (misdemeanor resisting an officer). He also admitted that he personally used a dangerous and deadly weapon, a knife, in the commission of the assault, and that he had a prior conviction that qualified as a strike. Notwithstanding defendant’s admission to the strike allegation, it was understood that a trial would be held to determine whether his prior conviction actually qualified as a strike. Defendant, who waived a jury trial on the strike allegation, further understood that he would be permitted to withdraw his admission to the allegation if the court determined that the prior conviction did not qualify as a strike, and that he would be sentenced to four years in prison regardless of the court’s determination. The remaining count and allegation were submitted for dismissal at the time of sentencing.
C. The Parties’ Written Arguments Regarding the Prior Conviction
Prior to the trial on the strike allegation, defendant filed a motion with the court challenging whether his prior conviction for discharging a firearm in a grossly negligent manner (former § 246.3; see § 246.3, subd. (a)) qualified as a strike. Defendant admitted that he had suffered a conviction in 1998 for the offense, but he contended that “there is insufficient evidence that [he] admitted to an allegation that he ‘personally used’ a firearm, a necessary admission to make the charge of 246.3 a strike offense.” Defendant contended that a reporter’s transcript of the plea hearing was not available, and he objected to the prosecution’s intent to call witnesses.
In written opposition to defendant’s motion, the prosecution contended that the record of conviction established that defendant pleaded guilty to a violation of section 246.3 and that he admitted a personal use allegation, and that he therefore suffered a prior strike conviction. To the extent there was ambiguity in the minute orders regarding defendant’s prior conviction, the prosecution indicated its intent to call witnesses, including the court clerk from the prior case.
D. The Trial on the Prior Conviction
On March 11, 2016, a court trial was held regarding whether defendant was previously convicted of a strike offense. At the outset of the trial, defendant again objected to allowing the prosecution to present witness testimony. Defendant argued that “no live witnesses can be called to establish the issue before the Court, which is what constitutes the record of conviction and whether or not the record of conviction sufficiently proves that there was . . . a strike admitted to by virtue of . . . the personal-use allegation.”
The trial court determined that it was “appropriate for the People to call a witness for the limited purpose of helping the Court understand the minute orders in this case.” The court stated that “the issue today is what particular writings on a minute order mean. And that ultimate determination would be up to the Court.” The court explained that the witness, a former court clerk, “would not . . . be allowed to testify as to the meaning of the minute orders. That is the ultimate decision that the Court needs to make.” The clerk would, however, be permitted to testify as to “how a minute order is filled out and what is put where and why.” For example, “the witness could testify as to, ‘When someone admits an allegation, that allegation would be recorded here, this box.’ ” The witness could “explain[] the minute order in general, not a particular minute order. [¶] In other words, they could not testify, ‘This minute order means X.’ But they could say, ‘Well, when someone admits Count 1, it’s recorded here’– that type of testimony.” After hearing further argument from the parties, the court reiterated that it was for the court to decide the meaning of particular documents, and that the witness should not be asked to testify “as to the meaning of any particular document” or “the meaning of a particular minute order.”
1. The testimony by the retired clerk
The prosecution subsequently called Nicholas Resz as a witness. Resz testified that he had been a courtroom clerk in Santa Clara County for 23 years, and that he was currently retired. Resz recognized a preprinted minute order form from 1998 as a form he had used as a clerk. He testified that the form was “fairly new” at the time. He testified that clerks were advised regarding how to fill out the form when a defendant was convicted and when a defendant was sentenced.
Upon a defendant’s change of plea and conviction, Resz would indicate in a section entitled “CONVICTION/JAIL/PRISON” the count number, whether it was a felony or misdemeanor, and the code section that was violated. If an enhancement allegation was admitted, the admission was recorded underneath the offenses in a section entitled “PRIORS Alleged & Found True/Admitted.” In contrast, at the time of sentencing, the admitted enhancement allegation would be recorded next to, or to the right of, the corresponding offense.
In another portion of the form entitled “PLEA,” the information recorded by a clerk included the actual taking of the plea and the advisements as to the consequences of the plea. If a box stating “Future serious felony” was checked, Resz testified that it would indicate that the defendant was advised “as to the future ramifications of the plea.” If the phrase “strike consequence” was written in that area of the form, it would indicate that the defendant “was advised” that the “count he was pleading to constituted a strike or any future convictions and it would . . . possibly enhance the penalty.”
2. The documentary evidence
In support of the strike allegation in the current case, the prosecution introduced into evidence the complaint and five minute orders from the prior case. The complaint alleged three counts against defendant, including, in count 2, discharging a firearm in a grossly negligent manner (former § 246.3). Count 2 also stated: “It is further alleged that in the commission of the foregoing offense, the said defendant, NY MAO, personally used a firearm, to wit: a(n) RIFLE, within the meaning of Sections 667 and 1192.7 of the Penal Code.”
A March 9, 1998 minute order reflects that the parties stipulated that the complaint would serve as the information. The minute order further reflects that defendant pleaded guilty to count 2, a violation of section 246.3. Underneath this recordation of defendant’s conviction, in the lower portion of the minute order, “PC 667/1192.7” is handwritten in a box labeled “Enhancement” within the section entitled “PRIORS Alleged & Found True/Admitted.” In a different section entitled “PLEA,” the minute order states “2 YR TOP” and indicates that counts 1 and 3 would be dismissed. The boxes for “Advised” and “Future serious felony prior” are marked. “STRIKE CONSEQUENCE” is also handwritten in this area of the minute order.
A May 26, 1998 minute order of the sentencing hearing reflects that imposition of sentence was suspended and that defendant was placed on probation for three years. The minute order indicates that defendant was convicted on count 2, a violation of section 246.3. On the minute order, to the right of this offense, “PC 667/1192.7” is handwritten under the word “Enhancement.” The minute order further reflects that counts 1 and 3 were dismissed.
Three other minute orders for proceedings on April 14, May 5, and May 19, 1998, between defendant’s guilty plea and sentencing, similarly contain handwritten notations indicating that defendant was convicted on count 2, a violation of section 246.3, and that there was an enhancement under “PC 667/1192.7.”
3. The parties’ arguments
After the prosecution presented evidence, defendant indicated that he had no evidence to present and made a motion under section 1118. Defendant contended that the minute order regarding his guilty plea was “absolutely silent with respect to a personal-use admission” by him. He argued that an admission could not necessarily be inferred based on a series of numbers in a minute order without further explanation. Defendant further contended that the numbers were in the “wrong portion” of the minute order form. According to defendant, in order for the court to find that he had admitted the personal use allegation, the court would have to “make assumptions,” “fill in the blanks,” and engage in speculation.
The prosecution contended that the personal use allegation was properly pleaded in the charging document. The prosecution further contended that the minute order of defendant’s guilty plea was properly filled out, based on the practice at the time, to record allegations, enhancements, and priors in the lower portion of the minute order in a section entitled “PRIORS Alleged & Found True/Admitted.” Similarly, the minute order of defendant’s sentencing was properly filled out, based on the practice at the time, to record the allegations on the same line as the count on which defendant was convicted. The prosecution contended that it was “pure speculation” that the form had been used incorrectly and that the testimony actually reflected that the form was completed correctly.
4. The court’s ruling
After argument from the parties, the trial court denied defendant’s section 1118 motion. The court found that the prosecution had proved beyond a reasonable doubt that defendant was convicted of an offense that constituted a strike because he admitted the allegation of personal use of a firearm. The court explained as follows: “The Court’s decision is based on the clear chain of evidence. . . . There’s really no question as to Count 2 itself. And the allegation has only one method that would make it a strike; that is, the personal use of a firearm. And the Penal Code Sections attached to that allegation are 667 and 1192.7.” The court found that the March 9, 1998 minute order “reflects that [defendant] pled to Count 2 and the allegation. [¶] The courtroom clerk explained that an allegation, for whatever reason, at that time was recorded in the enhancement box falling in the [‘PRIORS’] section of the minute order. And also the form indicates that [defendant] was informed of strike consequences. That, again, is further evidence that the allegation had been admitted on March 9th. [¶] Turning to the sentencing document, May 26, 1998 – this is [the] minute order reflecting the sentencing – the allegation that appeared in Count 2 of the complaint and then was also reflected on the change of plea appears this time in the enhancement section next to the violation, again, further proving that [defendant] had admitted the allegation and was sentenced to an offense that qualifies as a strike within the meaning of the [Three Strikes] law.”
E. The Sentencing
The trial court sentenced defendant on count 1 (assault with a deadly weapon) to four years in prison (the lower term, doubled), which was deemed satisfied based on presentence custody credits. The court imposed a concurrent 60-day jail term for counts 2 (misdemeanor possession of a controlled substance) and 4 (misdemeanor resisting an officer). The court ordered defendant to pay various fines and fees, including a booking fee of $129.75 to the City of San Jose. The remaining count and allegation were dismissed.
III. DISCUSSION
A. The Prior Conviction
Defendant contends that the evidence was insufficient to support the trial court’s finding that his prior conviction qualifies as a serious felony and a strike. We understand defendant to also contend that the trial court erred by allowing the retired court clerk to testify about the minute order form. Defendant argues that the “record of conviction” for purposes of proving whether a prior conviction was a serious felony is limited to documents in the record at or before the adjudication of guilt.
“To qualify as a ‘strike,’ the prior conviction must be a ‘violent felony’ as defined in section 667.5, . . . or a ‘serious felony’ as defined in section 1192.7. (§ 667, subd. (d); § 1170.12, subd. (b).)” (People v. Golde (2008) 163 Cal.App.4th 101, 111 (Golde).) Subdivision (c) of section 1192.7 lists the crimes that constitute serious felonies. (People v. Bautista (2005) 125 Cal.App.4th 646, 654.) “The crime of discharging a firearm in a grossly negligent manner under section 246.3 is not specifically listed [in subdivision (c) of section 1192.7]. Instead, such a crime qualifies as a serious felony only if certain conduct relating to the offense is proved. [Citation.] As pertinent here, section 1192.7, subdivision (c) defines a serious felony to include ‘any felony in which the defendant personally uses a firearm,’ . . . . (§ 1192.7, subd. (c)(8), . . . .)” (Ibid., fn. omitted.) “It is possible to be convicted of grossly negligent discharge of a firearm under section 246.3 without personally using a firearm, e.g., as an aider and abettor.” (Golde, supra, at p. 112.) Consequently, in order for a conviction under section 246.3 to qualify as a strike, there must be proof that the defendant personally used the firearm. (Golde, supra, at p. 113.)
“[A]n accusatory pleading may specify that a charged offense involves facts making the offense a serious felony.” (People v. Delgado (2008) 43 Cal.4th 1059, 1072 (Delgado).) In charging the acts that make the offense a serious felony, “it is sufficient . . . if the pleading states the following: [¶] ‘It is further alleged that in the commission and attempted commission of the foregoing offense, the defendant ______, personally . . . [used a firearm, to wit: _______,] . . . within the meaning of Sections 667 and 1192.7 of the Penal Code.’ ” (§ 969f, subd. (b).) “The serious felony issue will then be tried unless the defendant separately admits it as part of a guilty plea. [Citation.]” (Delgado, supra, at p. 1072.)
“ ‘[The] trier of fact is entitled to draw reasonable inferences from certified records offered to prove a defendant suffered a prior conviction . . . .’ [Citations.] ‘[O]fficial government records clearly describing a prior conviction presumptively establish that the conviction in fact occurred, assuming those records meet the threshold requirements of admissibility. (See Evid. Code, § 664 [“It is presumed that official duty has been regularly performed”].) Some evidence must rebut this presumption before the authenticity, accuracy, or sufficiency of the prior conviction records can be called into question.’ [Citation.] [¶] Thus, if the prosecutor presents, by such records, prima facie evidence of a prior conviction that satisfies the elements of the recidivist enhancement at issue, and if there is no contrary evidence, the fact finder, utilizing the official duty presumption, may determine that a qualifying conviction occurred. [Citations.]” (Delgado, supra, 43 Cal.4th at p. 1066.)
In determining whether the trial court properly found that defendant’s prior conviction qualifies as a serious felony and a strike, “we examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt. [Citations.]” (Delgado, supra, 43 Cal.4th at p. 1067.)
In this case, the complaint alleged, in count 2, the offense of discharging a firearm in a grossly negligent manner (former § 246.3). The complaint further alleged the following facts that made defendant’s crime constitute a serious felony: “in the commission of the foregoing offense, the said defendant, NY MAO, personally used a firearm, to wit: a(n) RIFLE, within the meaning of Sections 667 and 1192.7 of the Penal Code.” (Italics added; see § 969f, subd. (b).) Subsequent to the filing of the complaint, a March 9, 1998 minute order reflects that defendant pleaded guilty to count 2, a violation of section 246.3. The minute order also includes a handwritten reference to “PC 667/1192.7” in a section pertaining to alleged and admitted enhancements. The minute order further reflects that defendant was “advised” about the “future serious felony prior” and the “strike consequence.” (Uppercase omitted.)
The only reasonable inference that can be drawn from the complaint and the March 9, 1998 minute order is that defendant admitted the allegation that he personally used a firearm. Defendant offers no other inference that might reasonably be drawn from the handwritten reference to “PC 667/1192.7” in the minute order, notwithstanding his argument in the trial court that the handwritten reference to “PC 667/1192.7” was in the wrong portion of the minute order form. There were no other enhancements or priors alleged as to count 2, and counts 1 and 3 were dismissed. In view of the fact that defendant’s offense would not be a serious felony or a strike in the absence of an admission that he personally used a firearm, and in view of the references in the minute order to defendant being advised of the “serious felony” and “strike consequences” (uppercase omitted), along with the specific handwritten reference to “PC 667/1192.7,” the only reasonable conclusion that can be drawn from the March 9, 1998 minute order and the complaint is that defendant admitted the allegation that he personally used a firearm.
The minute order from defendant’s sentencing hearing on May 26, 1998, is in accordance with this interpretation. The minute order indicates that defendant was convicted on count 2, a violation of section 246.3, and that there was an “[e]nhancement” for “PC 667/1192.7.” Three other minute orders for the proceedings between defendant’s guilty plea and sentencing contain the same notations.
In view of these documents, we conclude that substantial evidence supports the trial court’s finding that defendant’s prior conviction constituted a serious felony and a strike.
We understand defendant to contend that the trial court erred by allowing the retired court clerk to testify about the minute order form. According to defendant, the court could only consider the “record of conviction.” Relying on People v. Trujillo (2006) 40 Cal.4th 165, among other authorities, he argues that the record of conviction is limited to documents and to proceedings at or before the adjudication of guilt, such as the charging document and minute orders. We understand defendant to further argue that the court was precluded from relying on the testimony to make factual findings regarding his prior conviction, based primarily on Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt”), Descamps v. United States (2013) 570 U.S. ___ [133 S.Ct. 2276, 2288] (Sixth Amendment concerns “counsel against allowing a sentencing court to ‘make a disputed’ determination ‘about what the defendant and state judge must have understood as the factual basis of the prior plea’ ”), and subsequent California appellate cases including People v. Wilson (2013) 219 Cal.App.4th 500, 509, 513 (Wilson) (“a trial court’s power to make findings for the purpose of sentence enhancement” are constrained by the federal Constitution, and specifically “[t]he Sixth Amendment right to trial by jury and the Fourteenth Amendment right to due process . . . limit a judge’s role in sentencing”).
The Attorney General contends that the trial court did not engage in any “factfinding beyond the bare records of the prior conviction,” which included the complaint and minute orders. The Attorney General argues that the court “expressly prohibited” the witness from adding factual information regarding defendant’s prior offense, and that the witness simply testified that court personnel had been trained to fill out the forms in a particular manner.
We need not decide whether the court erred in allowing or considering the testimony because we determine that any error was harmless. As defendant observes, this court in Wilson, supra, 219 Cal.App.4th 500, assessed whether the error was harmless beyond a reasonable doubt. Specifically, this court applied the test set forth in Chapman v. California (1967) 386 U.S. 18, explaining that “[i]f we conclude, beyond a reasonable doubt, that a jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true the strike prior allegation, then the error is harmless. [Citations.] ‘The failure to submit a sentencing factor to a jury may be found harmless if the evidence supporting that factor is overwhelming and uncontested, and there is no “evidence that could rationally lead to a contrary finding.” ’ [Citation.]” (Wilson, supra, at p. 519.)
In this case, the evidence establishing that defendant admitted he personally used a firearm was “ ‘overwhelming and uncontested.’ ” (Wilson, supra, 219 Cal.App.4th at p. 519.) As we have explained, the only reasonable inference from the court records submitted by the prosecution is that defendant admitted the allegation that he personally used a firearm. In particular, the charging document alleged that defendant “personally used a firearm, . . . a(n) RIFLE, within the meaning of Sections 667 and 1192.7 of the Penal Code.” The March 9, 1998 minute order regarding defendant’s plea of guilt contains a handwritten reference to “PC 667/1192.7” in a section pertaining to alleged and admitted enhancements, and reflects that defendant was “advised” about the “future serious felony prior” and the “strike consequence.” (Uppercase omitted.) In view of these court records, and in the absence of any “ ‘ “evidence that could rationally lead to a contrary finding,” ’ ” we determine that any error regarding the court allowing or considering the testimony by the retired clerk was harmless. (Wilson, supra, at p. 519.)
B. Booking Fee
The probation department prepared a waived referral memorandum recommending that defendant pay a booking fee of $129.75 to the City of San Jose pursuant to Government Code sections 29550, 29550.1, and 29550.2. The trial court at the sentencing hearing followed the recommendation and ordered defendant to pay $129.75 to the City of San Jose.
Defendant argues that the booking fee must be stricken because there was no evidence of the administrative costs of booking and processing. In support of this argument, he cites Government Code section 29550.2, which limits booking fees to “the actual administrative costs” incurred in booking and processing arrested persons (id., subd. (a)).
The Attorney General contends that defendant’s claim lacks merit based on People v. Aguilar (2015) 60 Cal.4th 862 (Aguilar).
“Three statutes address defendants’ payment of jail booking fees, Government Code sections 29550, 29550.1, and 29550.2. Which section applies to a given defendant depends on which governmental entity has arrested a defendant before transporting him or her to a county jail.” (People v. McCullough (2013) 56 Cal.4th 589, 592.)
In this case, defendant asserts that his booking fee, which was payable to the City of San Jose, was imposed pursuant to Government Code section 29550.2. However, Government Code section 29550.2 only applies to the extent a person was arrested by a governmental agency not specified in Government Code sections 29550 or 29550.1, and it makes the fee recoverable by the county. (Id., § 29550.2, subds. (a) and (b); see also id., § 29550, subd. (c).)
In contrast, Government Code section 29550.1 applies to individuals arrested by a city and concerns fees recoverable by the city. Specifically, Government Code section 29550.1 provides that “[a]ny city . . . whose officer or agent arrests a person is entitled to recover any criminal justice administration fee imposed by a county from the arrested person if the person is convicted of any criminal offense related to the arrest.” In view of the fact that defendant was ordered to pay the booking fee to the City of San Jose, it appears that Government Code section 29550.1 applies to this case, rather than Government Code section 29550.2.
Further, Government Code section 29550.1, regarding a defendant’s booking fee payment to the city, does not expressly limit the booking fee to the actual administrative costs incurred in booking. Nonetheless, the amount payable under that section is determined in accordance with Government Code section 29550, which limits the county’s ability to seek reimbursement from the city for booking to actual administrative costs. (Id., § 29550, subd. (a)(1).) Government Code section 29550 further provides that the booking county may directly bill the city for no more than “one-half of the actual administrative costs.” (Id., § 29550, subd. (a)(1), italics added.) As we have indicated, the city in turn may recover that (one-half) amount from the defendant. (Id., § 29550.1.)
In this case, in support of his argument regarding the lack of evidence of actual costs, defendant cites People v. Pacheco (2010) 187 Cal.App.4th 1392 (Pacheco), which held that there must be evidence in the record of the actual administrative costs of the defendant’s booking. (Id. at p. 1400.)
However, after Pacheco was decided, the California Supreme Court in Aguilar, supra, 60 Cal.4th 862, considered Government Code section 29550 and the limitation on booking fees to actual administrative costs. (Gov. Code, § 29550, subd. (c); Aguilar, supra, at p. 869.) The California Supreme Court concluded that the defendant’s contention regarding the absence of evidence of actual costs was without merit. The California Supreme Court explained that the trial court could rely “on the fee schedule set by the county board of supervisors based on actual cost data submitted by the county sheriff.” (Aguilar, supra, at p. 869.)
In this case, the minute order from the sentencing hearing is contained on a pre-printed form. Regarding the booking fee, two amounts are pre-printed on the minute order form: $129.75 and $259.50. In this case, the lesser amount is hand-marked, reflecting that defendant was ordered to pay $129.75. This amount is one-half the other preprinted amount of $259.50. A reasonable inference arises that, because the amounts are pre-printed on the minute order form, and because the $129.75 payable to the city is one-half the other amount listed on the form (see Gov. Code, § 29550, subd. (a)(1)), the amounts are from a preexisting fee schedule. “Nothing before us suggests the trial court did not properly rely on the . . . fee schedule.” (Aguilar, supra, 60 Cal.4th at p. 869.) We therefore reject defendant’s contention that the booking fee must be stricken for lack of evidence of actual costs.
IV. DISPOSITION
The judgment is affirmed.






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BAMATTRE-MANOUKIAN, J.






WE CONCUR:






__________________________
ELIA, ACTING P.J.






__________________________
MIHARA, J.








People v. Mao
H043449