P. v. Franco

Filed 10/26/06 P. v. Franco CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

A jury convicted defendant Kenneth Franco of robbery of an inhabited building (counts 1, 2, 3; Pen. Code, §§ 211-212.5, subd. (a)),[1] theft or unauthorized use of a vehicle (count 4; Veh. Code, § 10851, subd. (a)), and false imprisonment (counts 5, 6, 7, 8; § 236). Enhancement allegations for personal use of a firearm were found true (counts 1, 2, 3, 4; § 12022.53, subd. (b)), (counts 5, 6, 7, 8; § 12022.5). The trial court found true the allegations concerning a prior Texas robbery conviction, and found that conviction qualified both as a strike and a serious felony. (§§ 667, subd. (b)-(i); 1170.12; 667, subd. (a); 667.5, subd. (c).)

Defendant was sentenced to state prison for a fixed term of 41 years, 8 months.[2]

The charges arose out of a home invasion robbery on August 4, 2004. Defendant and another man entered a house where four men had been sleeping, robbed them at gunpoint of money and jewelry, and demanded large quantities of drugs. The assailants threatened the family of one victim if he did not provide the drugs in the near future and then fled in the victim’s vehicle.

DISCUSSION

On appeal, defendant raises two claims of error: (1) that the evidence was insufficient to prove that his prior conviction for a Texas robbery was a prior serious felony within the meaning of section 667, subdivision (a) and the “Three Strikes” law, and (2) that the imposition of the upper term violated Blakely v. Washington (2004) 542 U.S. 296, and his constitutional rights to a jury trial and due process of the law.

The Attorney General agrees that the finding that defendant suffered a prior serious felony must be reversed and remanded for a retrial as to whether the Texas prior conviction for robbery qualifies as a prior serious felony in California.

Under the Three Strikes law, certain prior serious or violent felonies are denoted as “strikes” and are punished more severely. (People v. Woodell (1998) 17 Cal.4th 448, 452.) Under section 667, subdivision (a), specified prior serious felony convictions are separately punished with a five year enhancement. Convictions from another state may qualify as strikes if the prior conviction involves conduct which satisfies all of the elements of the California offense. (People v. Woodell, supra, at p. 453; see also § 667, subd. (d)(2).) In addition, “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.” (People v. Guerrero (1988) 44 Cal.3d 343, 355.)

In this case, in order to prove that defendant’s Texas prior conviction qualified as a strike under California law, the prosecutor submitted the three-page 1996 abstract of judgment from Texas, which noted that defendant was convicted of aggravated robbery with the use of a knife within the meaning of Texas Penal Code section 29.02. The trial court took judicial notice of Texas Penal Code section 29.02, as well as relevant definitions in the Texas Penal Code, and concluded that the Texas conviction comported with the California crime of robbery.

Defendant now argues that the Texas conviction for robbery does not necessarily require the same elements as a California conviction for robbery. In California, the crime of robbery is defined in section 211 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.” The Texas Penal Code defines robbery as “an offense, if, in the course of committing theft as defined in Chapter 31 and with intent to obtain or maintain control of the property, [the defendant] (1) intentionally, knowingly or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.” (Tex. Pen. Code, § 29.02.) Texas Penal Code section 29.01 further defines “ ‘[i]n the course of committing theft’ “ as “conduct that occurs in an attempt to commit, during the commission, or in the immediate flight after the attempt or commission of theft.”

Defendant raises three points of difference between the two statutes: (1) in Texas, robbery does not require a specific intent to permanently deprive the victim of his or her property; (2) in Texas there is no requirement that the property be taken from the victim’s person or immediate presence; and (3) asportation is not an element of robbery in Texas.

The Attorney General disagrees with two of these claims: the intent to deprive and the element of asportation. The Attorney General first points to the case of People v. Avery (2002) 27 Cal.4th 49, 55, where our Supreme Court explained that the Texas requirement that the defendant possess “an intent to take the property for so extended a period as to deprive the owner of a major portion of its value or enjoyment satisfies the common law, and therefore California, intent requirement.”

Similarly, the element of asportation, which may not be present in the Texas robbery statute, is of no significance, according to the Attorney General, because a Texas robbery may be predicated on either a completed or attempted theft. An attempted theft within the definition of robbery in Texas would constitute an attempted robbery in California. The crime of attempted robbery is still a serious felony within the meaning of section 1192.7, subdivision (c)(39), and thus subjects defendant to the same increased punishment.

The Attorney General agrees, however, that California law requires the threat or violence to be directed at the person in actual or constructive possession of the property. (See, for example, People v. Nguyen (2000) 24 Cal.4th 756, 760-765.) Under the Texas statutory scheme, the threat or violence may be inflicted on a third party who had no possessory interest in the property, but who was threatened or injured while the thief was taking the property of another. (See, for example, Williams v. State (1994) 886 S.W.2d 495, 497.) The abstract of judgment from Texas does not contain information from which this element of the California crime may be ascertained. Thus, the record does not contain sufficient evidence to prove that defendant’s prior Texas robbery conviction was a robbery under California law. However, the Attorney General notes that the indictment for defendant’s Texas conviction may contain information identifying the possessor of the property taken as well as the victim of the use of force or fear. (See, e.g., Blount v. State (1993) 851 S.W.2d 359, 365-366.) Thus, a retrial is appropriate.

This is in accord with the recent case of People v. Rodriguez (2004) 122 Cal.App.4th 121. In that case, the Court of Appeal reversed the trial court’s findings that four prior Texas convictions for robbery and burglary qualified as serious felonies in California for purposes of sentence enhancement. “Under the applicable Texas law, the offense of robbery did not require either asportation or the taking of property from the person or his or her immediate presence; both of these elements are necessary for robbery under California law. Because there is no evidence that appellant’s robbery involved either asportation or taking property from the person or his or her immediate presence, the trial court’s finding that appellant’s Texas robbery conviction satisfied all of the elements of robbery under California law is not supported by substantial evidence. It is therefore necessary to reverse and remand for a retrial as to whether appellant’s Texas robbery conviction was a robbery or other serious felony under California law. [Citations.]” (Id. at p. 131.)

We agree that the trial court’s finding that this enhancement allegation was true must be reversed and the case remanded for a new trial on this allegation. (People v. Barragan (2004) 32 Cal.4th 236, 239-259.)

As to defendant’s second claim of error, that the imposition of the upper term violated Blakely v. Washington, supra and his constitutional rights to a jury trial and to due process of the law, this claim is now technically moot, as we must remand the case for retrial on the enhancement allegation and thereafter resentencing.

However, as defendant recognized, this issue has been decided against him by the California Supreme Court in People v. Black (2005) 35 Cal.4th 1238 (Black). The Supreme Court held that “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Id. at p. 1244.) The court explained that “in operation and effect, the provisions of the California determinate sentence law simply authorize a sentencing court to engage in the type of factfinding that traditionally has been incident to the judge’s selection of an appropriate sentence within a statutorily prescribed sentencing range. Therefore, the upper term is the ‘statutory maximum’ and a trial court’s imposition of an upper term sentence does not violate a defendant’s right to a jury trial under the principles set forth in Apprendi, Blakely, and Booker.” (Id. at p. 1254.)

In the recent case of People v. Jordan (2006) 141 Cal.App.4th 309, this district upheld the imposition of an upper term in the face of a Blakely challenge. There, the trial court imposed the upper term after finding seven factors in aggravation and only one in mitigation. We concluded that under the authority of Black, the trial court exercised its discretion in a reasonable manner and validly imposed an upper term.

Finally, as defendant correctly notes, this issue is pending before the United States Supreme Court in Cunningham v. California, certiorari granted February 21, 2006, No. 05-6551, ___U.S. ___ [126 S.Ct. 1329].

DISPOSITION

The judgment is affirmed, except that the true findings as to the allegations that defendant suffered a prior Texas robbery conviction pursuant to (1) the Three Strikes law (§ 667, subd. (d)) and (2) section 667, subdivision (a)(1), are reversed. The sentence is vacated, and the matter is remanded for a retrial as to the allegations concerning the prior Texas robbery conviction and for resentencing.

Duffy, J.

WE CONCUR:

Mihara, Acting, P.J.

McAdams, J.

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

[2] Defendant’s term of 41 years, 8 months was calculated as follows: the upper term on count 1, doubled, 12 years; one-third the mid term as to counts 2 and 3, consecutive to count 1 and to each other, 2 years, 8 months each; the mid term as to count 4, stayed under section 654; the upper term as to counts 5, 6, and 7, stayed under section 654; one-third the mid term as to count 8, consecutive, one year, four months; five years consecutive for the section 667, subd. (a) enhancement; 10 years for the section 12022.53, subdivision (b) enhancement as to count 1, and three years, four months each as to counts 2 and 3; one year, four months as to the weapons enhancement attached to count 8; with the weapons enhancement as to counts 5, 6 and 7 stayed under section 654.