Filed 5/17/18 P. v. Rutledge CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE


THE PEOPLE,
Plaintiff and Respondent,
v.
EUGENE D. RUTLEDGE,
Defendant and Appellant.

A150542

(Alameda County
Super. Ct. No. C154409)


Eugene D. Rutledge appeals the trial court’s finding that his prior conviction for federal bank robbery constituted a serious felony for purposes of the “Three Strikes” law (Pen. Code, §§ 667, subds. (d)-(e), 1170.12, subds. (b)-(c)). We affirm.
BACKGROUND
In 2007, appellant was convicted following a jury trial of multiple counts of second degree robbery. A bifurcated proceeding was held on an allegation that appellant was previously convicted of a prior serious felony, to wit, federal unarmed bank robbery (18 U.S.C. § 2113, subd. (a); hereafter, § 2113(a)). The following records from the 1999 federal proceeding were admitted into evidence: an indictment, a reporter’s transcript of the plea hearing, and a judgment of conviction. The prior conviction allegation was found true and appellant was sentenced accordingly.
In 2016, appellant filed a motion to modify this sentence, arguing the record of his prior conviction did not establish it was a serious felony under California law. The trial court found the record properly established his prior conviction was a serious felony, and denied the motion. This appeal followed.
DISCUSSION
“Penal Code section 1192.7, subdivision (c) sets forth the categories of convictions California deems to be for serious felonies. Though there is no California convictable offense of bank robbery, Penal Code section 1192.7, subdivision (c) lists a crime of this name as a serious felony, a prior conviction for which may enhance the sentence for a subsequent offense. (Id., subd. (c)(19).) For this purpose, Penal Code section 1192.7 defines ‘ “bank robbery” ’ as ‘to take or attempt to take, by force or violence, or by intimidation from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association.’ (Id., subd. (d).)” (People v. Miles (2008) 43 Cal.4th 1074, 1081 (Miles).)
Appellant was convicted of violating a federal bank robbery statute which provides, in relevant part: “Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, . . . any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank . . . ; or [¶] Whoever enters or attempts to enter any bank . . . with intent to commit in such bank . . . any felony affecting such bank . . . and in violation of any statute of the United States, or any larceny-- [¶] Shall be fined under this title or imprisoned not more than twenty years, or both.” (§ 2113(a).) “The California serious felony of bank robbery substantially coincides with the offense described in the first paragraph of section 2113(a) . . . . However, there is no California serious felony that corresponds to the crime described in the second paragraph of section 2113(a). Thus, evidence that the defendant suffered a previous conviction under section 2113(a), standing alone, cannot establish that the conviction was for a serious felony under California law.” (Miles, supra, 43 Cal.4th at pp. 1081–1082, fns. omitted.) Appellant contends the record does not show he used force, violence, or intimidation, as required to demonstrate he was convicted under the first paragraph of section 2113(a), rather than the second.
“ ‘The Sixth Amendment contemplates that a jury—not a sentencing court—will find’ the facts giving rise to a conviction, when those facts lead to the imposition of additional punishment under a recidivist sentencing scheme.’ ” (People v. Gallardo (2017) 4 Cal.5th 120, 134 (Gallardo).) “Where, as here, the mere fact of conviction under a particular statute does not prove the offense was a serious felony, otherwise admissible evidence from the entire record of the conviction may be examined to resolve the issue. [Citations.] This rule applies equally to California convictions and to those from foreign jurisdictions.” (Miles, supra, 43 Cal.4th at p. 1082.)
In Gallardo, our Supreme Court recently considered “the limits of a judge’s authority to make the findings necessary to characterize a prior conviction as a serious felony.” (Gallardo, supra, 4 Cal.5th at p. 124.) Gallardo held: “While a sentencing court is permitted to identify those facts that were already necessarily found by a prior jury in rendering a guilty verdict or admitted by the defendant in entering a guilty plea, the court may not rely on its own independent review of record evidence to determine what conduct ‘realistically’ led to the defendant’s conviction.” (Ibid.) “The jury trial right is violated when a court adds extra punishment based on factfinding that goes ‘beyond merely identifying a prior conviction’ by ‘tr[ying] to discern what a trial showed, or a plea proceeding revealed, about the defendant’s underlying conduct.’ ” (Id. at p. 135.) “The court’s role is, rather, limited to identifying those facts that were established by virtue of the conviction itself—that is, facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as the factual basis for a guilty plea.” (Id. at p. 136, fn. omitted.) Thus, Gallardo concluded, the trial court in that case erred in relying on the preliminary hearing transcript to determine the nature of the prior conviction because “[n]othing in the record shows that defendant adopted the preliminary hearing testimony as supplying the factual basis for her guilty plea.” (Ibid.)
The records of appellant’s federal conviction show there was no written plea agreement. At the plea hearing, appellant admitted the prosecutor’s stated factual basis that, in relevant part, he “handed the teller a note demanding money” and subsequently “took $807 . . . .” Appellant argues this factual basis does not establish he used force, violence, or intimidation, and the People do not contend otherwise.
However, as the People argue, the federal indictment alleged that appellant “by force, violence and intimidation did take from the person and presence of an employee of California Federal Bank, located at 1325 Broadway, in Oakland, approximately $807.00 in money belonging to and in the care, custody, control, management, and possession of the aforesaid bank, the deposits of which were then insured by the Federal Deposit Insurance Corporation; in violation of . . . [s]ection 2113(a).” (Italics added.) Appellant pled guilty to the charge in the indictment.
In Gallardo, our Supreme Court recognized that “ ‘indictments and jury instructions’ ” may be relied on “to identify the precise statutory basis for a prior conviction” because such documents—unlike a preliminary hearing transcript—“might help identify what facts a jury necessarily found in the prior proceeding.” (Gallardo, supra, 4 Cal.5th at p. 137.) United States Supreme Court cases confirm that courts may rely on indictments to determine the nature of a prior conviction. “A prosecutor charging a violation of a divisible statute must generally select the relevant element from its list of alternatives,” and thus “[a] later sentencing court need only check the charging documents and instructions . . . to determine whether in convicting a defendant under that divisible statute, the jury necessarily found that he committed [a qualifying crime].” (Descamps v. United States (2013) 570 U.S. 254, 272.) In prior convictions involving guilty pleas, “a charging document that narrows the charge” reveals “whether the plea had ‘necessarily’ rested on” the relevant facts. (Shepard v. United States (2005) 544 U.S. 13, 21, 25.)
United States v. Castleman (2014) 134 S.Ct. 1405 (Castleman) is on point. In Castleman, the United States Supreme Court considered whether a prior state conviction involved the use of physical force, as required for the application of a federal statute. (Id. at pp. 1409–1410.) The court concluded the state statute set forth three types of violations and that some, but not all, of these types involved the use of physical force. (Id. at pp. 1413–1414.) The high court “consult[ed] the indictment to which Castleman pleaded guilty in order to determine whether his conviction did entail the elements necessary [for purposes of the federal statute]. Here, that analysis is straightforward: Castleman pleaded guilty to having ‘intentionally or knowingly cause[d] bodily injury’ to the mother of his child, and the knowing or intentional causation of bodily injury necessarily involves the use of physical force.” (Id. at p. 1414, record citation omitted.) The court concluded: “Because Castleman’s indictment makes clear that the use of physical force was an element of his conviction, that conviction qualifies [for purposes of the federal statute].” (Id. at p. 1415.)
As in Castleman, appellant’s indictment makes clear that he pleaded guilty to a bank robbery involving the use of “force, violence and intimidation.” This conviction thus qualifies as a serious felony under California law. (Pen. Code, § 1192.7, subds. (c)(19), (d); Miles, supra, 43 Cal.4th at pp. 1081–1082.)
To the extent appellant argues that in 2007 neither the trial court nor the jury determined whether his federal conviction constituted a serious felony under California law, we reject the challenge. In the 2007 proceedings, the trial court found appellant was the person identified in the federal records and the jury found he suffered the prior conviction. (See Gallardo, supra, 4 Cal.5th at p. 125 [“A defendant does . . . have a statutory right to a jury trial on ‘the question of whether or not the defendant has suffered the prior conviction’—though not ‘whether the defendant is the person who has suffered the prior conviction.’ ”]; see also Pen. Code, § 1025, subds. (b) & (c).) “[D]eterminations about the nature of prior convictions [to determine whether, for example, they constitute serious felonies under California law] are to be made by the court, rather than a jury, based on the record of conviction.” (Gallardo, at p. 138.) By sentencing appellant on the prior conviction, the trial court in 2007 impliedly found the federal conviction was a serious felony under California law; appellant does not argue such a finding must be express.
DISPOSITION
The order is affirmed.


 




SIMONS, J.



We concur.




JONES, P.J.




NEEDHAM, J.





(A150542)