P. v. Bergeron

Filed 2/28/07 P. v. Bergeron CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Richard F. Toohey, Judge. Affirmed in part, reversed in part, and remanded.

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

John Dominick Bergeron appeals from a judgment after a jury convicted him of numerous offenses arising out of a crime spree committed from March 2004 to June 2004. Bergeron argues he received ineffective assistance of counsel, there was instructional error, insufficient evidence supported two of his convictions and one of his prior convictions, and there were sentencing errors. We agree there was insufficient evidence to support the finding on his prior conviction. We affirm the convictions and remand for further proceedings.

FACTS

Count 1/Second Degree Commercial Burglary

Shannon Carpenter and her husband had a joint checking account at the Orange County Teachers Federal Credit Union (OCTFCU). On March 12, 2004, Carpenter took her infant daughter with her to work. Carpenter and her daughter went inside her office, but she left her diaper bag, which contained her checkbook, in the car. Later that day, Bergeron went to the OCTFCU to cash a check. The check was written from the Carpenters account to Bergeron in the amount of $1,700 and was dated March 10, 2004. Bergeron provided identification and a thumb print to the teller and signed the back of the check. The teller compared the signature on the check with Carpenters signature on file, and it appeared to be authentic. Because the check amount was over her limit, the teller called her supervisor who approved the transaction after determining the signature on the check and the signature on file were close. The teller cashed the check, and Bergeron left. After Bergeron left, the teller told her supervisor she didnt feel right about the check. The bank manager called Carpenter. Carpenter did not know Bergeron or write him a check. She called her husband, and he stated he had not written a check to Bergeron. Carpenter went to her car and discovered the front passenger side door, which was previously locked, was open and the diaper bag, including her checkbook, was gone. Carpenter called the police.

Counts 2 and 3/Carjacking and Unlawful Taking of a Vehicle

One week later, on March 19, 2004, Kimberly Foster drove her red 1997 Honda Passport, license plate number 3WLV269, to an animal clinic. She parked behind the clinic and got into the backseat to comfort her crying cats. A man got into the front drivers seat of the vehicle. She later described him as a tan Caucasian, about six feet tall, weighing about 180 pounds, and with dark brown hair and a full unkempt beard and mustache. He turned towards her and grabbed her backpack from the backseat. Foster grabbed her backpack, and they struggled. After Foster wrestled the backpack from him, the man grabbed the vehicle keys and told her to get out or he would take her with him. She grabbed her backpack and cats and got out, and the man drove away. As we explain below, two weeks later an officer found her vehicle abandoned in an industrial complex, but not before Bergeron used it in another crime.

Three months later, Foster went to a live lineup. She could not identify the man who took her car. But, as she was walking out, she told the police officer the person in position three, Bergeron, looked like the perpetrator. However, she said she was not one hundred percent sure[.]

Count 4/Second Degree Commercial Burglary

Delores (Delores) and David (David) Mellon had a joint account at the OCTFCU. David passed away on January 3, 2003, and Delores passed away on January 12, 2004. Their daughter closed their account shortly after Deloress death. On March 24, 2004, Bergeron went to the OCTFCU to cash a check. The check was written from the Mellons account to Bergeron in the amount of $795. The check was dated February 29, 2004, one month after Delores death. The teller asked Bergeron for his identification and a thumb print. When the teller was unable to access any account information on his computer, he called for his supervisor. The teller and a supervisor spent approximately 15 to 20 minutes investigating the account. During that time, Bergeron, who was fidgety, left the bank twice to have a cigarette in the parking lot. Eventually, Bergeron left without retrieving the check or his identification. A bank supervisor followed Bergeron outside and saw him get into a red sports utility vehicle with license plate number 7K00735.[1] He quickly drove away.

About one week later, on April 1, 2004, a police officer found Fosters Honda Passport in an industrial complex parking lot. The vehicles license plates were missing and had been replaced with license plates reading 7K00735, which were registered to a Ford.

Counts 5 and 6/Second Degree Robbery and Attempted Carjacking

On June 1, 2004, Gloria Martinez parked her Dodge Durango in a gas station parking lot and waited for her children to get out of school. She saw Bergeron walk towards her vehicle and disappear. The next time Martinez saw Bergeron, he was getting into the front passengers seat of her vehicle. He demanded she start the vehicle, but Martinez said she was waiting for her children. Bergeron reached over and started the vehicle. Martinez took off her seatbelt, opened the door, got out, and ran towards the gas station cashier screaming for help. The cashier heard the screaming and came outside with a cellular telephone; Martinez called the police. Bergeron did not take Martinezs vehicle, but he did take her purse and car keys.

Counts 7, 8, and 9/Second Degree Robbery, Aggravated Assault, and Misdemeanor Hit and Run with Property Damage

Four days later, Thi Nguyen was driving her silver 2001 Honda Accord. She was stopped behind a Ford pickup truck waiting to make a left turn. The person in the truck, apparently tired of waiting to turn left, backed into Nguyens car bending her hood. The truck sped away, and Nguyen chased the truck. As driver, Bergeron pulled over, got out, and apologized. Nguyen asked for proof of insurance, and Bergeron walked back to the truck and returned with some papers. Nguyen got her proof of insurance and a camcorder. Bergeron grabbed her camcorder, insurance papers, keys, and cellular telephone, and tried to run away. Nguyen refused to let go of the camcorder, and she grabbed Bergerons shirt. Bergeron said, fuck you[,] and walked to his truck dragging Nguyen as they struggled over the camcorder. Bergeron started the truck and drove dragging Nguyen along the ground. Bergeron stopped the truck, got out, and kicked Nguyen in the stomach three times. He got back into the truck and drove, again dragging Nguyen along the ground. He stopped again, got out, and kicked Nguyen again. Nguyen let go of the camcorder. Bergeron told Nguyen to die and drove away.

An amended information charged Bergeron with: (1) second degree commercial burglary of the OCTFCU on March 12, 2004 (Pen. Code,  459, 460,

subd. (b))[2] (count 1); carjacking of Foster ( 215, subd. (a)) (count 2) and unlawful taking of a vehicle on March 19, 2004 (Veh. Code, 10851, subd. (a)) (count 3); second degree commercial burglary of the OCTFCU on March 24, 2004 ( 459, 460, subd. (b))

(count 4); second degree robbery ( 211, 212.5, subd. (c)) (count 5) and attempted carjacking ( 664, 215, subd. (a)) (count 6) of Martinez on June 1, 2004; and second degree robbery ( 211, 212.5, subd. (c)) (count 7) and aggravated assault ( 245,

subd. (a)(1)) (count 8) of Nguyen, and misdemeanor hit and run with property damage on June 5, 2004 (Veh. Code,  20002, subd. (a)) (count 9). The information alleged Bergeron had suffered two prior out-of-state serious felony convictions and two prior

out-of-state strike convictions (a conviction for attempted robbery in Kansas and a conviction for robbery in Nevada). ( 667, subds. (a)(1), (d), (e)(2)(A), 1170.12,

subds. (b), (c)(2)(A).)

The jury convicted Bergeron on all counts except count 8. On count 8, the jury convicted him of the lesser included offense of misdemeanor assault. In a bifurcated trial, the trial court found all the prior conviction allegations true. The court sentenced Bergeron to state prison for a total term of 135 years to life.

DISCUSSION

1. Ineffective Assistance of Counsel

Bergeron argues he received ineffective assistance of counsel because after numerous prospective jurors made prejudicial statements, his defense counsel did not request the trial court declare a mistrial, discharge the entire jury venire, and begin jury selection anew. We disagree.

To establish ineffective assistance of counsel, a defendant must show that (1) counsels representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsels deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsels failings, the result would have been more favorable to the defendant. [Citation.] A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.] In determining whether counsels performance was deficient, a court must in general exercise deferential scrutiny . . . and must view and assess the reasonableness of counsels acts or omissions . . . under the circumstances as they stood at the time that counsel acted or failed to act. [Citation.] Although deference is not abdication [citation], courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight. [Citation.] (People v. Scott (1997) 15 Cal.4th 1188,

1211-1212.) The Sixth Amendment of the federal constitution guarantees an accused the right to an impartial jury. (U.S. Const., 6th Amend.)

At voir dire, the trial court introduced counsel and Bergeron, and explained the charges and the applicable standard of proof. The court stated Bergeron was presumed innocent and it was the district attorneys responsibility to demonstrate he was guilty of the charges beyond a reasonable doubt. When the court asked the venire panel whether any of them had relatives or close friends who were in law enforcement, prospective Juror No. 154 stated his brother-in-laws father worked for the Anaheim Police Department. The court asked him whether that would have any bearing on his ability to be fair and impartial. He relied, No. Except I was talking to him at dinner last year and he said that the district attorney would never take on a case that they think they could beat. The court stated, All right. Well, the dinner table is full of conversations. [] What is important -- I mean, everybody comes to this courtroom with different life experiences. What is important is, were not here for a talk show. This is not -- this is where, as a juror, you take the oath and you promise to listen to the evidence and decide the case according to the law. [] Do you feel that you can do that? He responded, sure. Later, the trial court granted defense counsels motion to exclude prospective Juror No. 154.

After defense counsel explained the presumption of innocence, he asked prospective Juror No. 152 how he felt about the presumption and the following colloquy occurred:

[Juror]: It sounds wonderful and its one of the doctrines that this country is based on. But I am trying to be honest.

[Defense counsel]: Absolutely.

[Juror]: I mean, you have got to be really great if you can get him acquitted of nine counts spread out over two years, if I listened to the evidence correctly.

[Defense counsel]: Well, you havent heard any evidence.

[Juror]: No, I know. But I mean the charges. I have some idea how the system works. The [district attorney] is not going to bring charges if there isnt sufficient evidence. [] And the judge read off a list of at least 25 people that were all police officers. I doubt that they have any axe to grind. [] I just dont think I could sit here with 11 people and make a hung jury here. Because thats what Id do. I just -- with that many charges, if all 11 of them said, he is innocent -- because its bothering my brain, that I just got this doubt that has been planted in my head, Im afraid I cant buy that.

[Defense counsel]: Okay.

[Juror]: Im trying to be honest.

[Defense counsel]: Absolutely.

[Juror]: So, I would be wasting your time, his time, the judges time, and their time if -- there is no way I can, in all due conscience, say -- vindicate, acquit him, based on that list of charges.

[Defense counsel]: So, having not heard any evidence in the case, just by the number of counts, you automatically feel like . . . is behind the eight ball.

[Juror]: Well, I hate to be a pin head. It sounds that way. But, yes.

[Defense counsel]: So, you dont start with the presumption of innocence then, based on the number of charges, in all honestly?

[Juror]: Well, in watching the nightly news and reading newspapers since 1960, its difficult.

[Defense counsel]: Well, let me ask you this: Do you think that it is possible for a person, because of suspicious circumstances, to be accused of a crime, arrested, and brought to trial when they didnt do anything wrong?

[Juror]: Not with a list that long.

[Defense counsel]: I mean --

[Trial court]: Listen, sir, Im sure -- I want you to listen to the question and answer it directly. Because I dont want to hear stuff beyond it. Okay?

[Juror]: Okay.

[Trial court]: Go ahead, counsel.

[Defense counsel]: Do you think thats possible?

[Juror]: Could you repeat the question?

[Defense counsel]: Sure. [] Do you think a person could be accused of a crime they didnt commit and brought to trial?

[Juror]: Remotely.

[Defense counsel]: Okay. Well, do you think it happens?

[Juror]: Remotely.

Later, when the district attorney asked prospective Juror No. 152 whether he could use circumstantial evidence to determine an element of a crime, the following colloquy took place:

[Juror]: What was going through my head now is circumstantial evidence didnt -- it worked in favor of the Scott Peterson case, getting him convicted. The

jury --

[Trial court]: Excuse me. Im going to tell you again, sir. I dont want to hear a litany of -- if you would, just answer the question directly. I dont want to get other stuff involved in this case --

[Juror]: Okay.

Shortly thereafter, prospective Juror No. 152 responded, Im not sure[,] when the district attorney asked him whether he fairly evaluate the evidence. Later, the trial court granted defense counsels motion to exclude prospective Juror No. 152.

Next, defense counsel asked prospective Juror No. 147 about whether he or she would offer him the presumption of innocence despite the number of offenses with which Bergeron has been charged. Prospective Juror No. 147 responded, I mean, I will listen to the evidence. I will make, you know, decisions then. But, nine counts, its pretty steep. Later, the trial court granted the district attorneys motion to exclude prospective Juror No. 147.

The defense counsel asked prospective Juror No. 105 whether he or she could be fair and put aside personal feelings. Prospective Juror No. 105 responded, I think I fall in the category, before I heard the charges, I made a personal assessment

of . . . [Bergeron], just by looking at body language and appearance and all that kind of stuff, formed my own opinion. Defense counsel asked prospective Juror No. 105 whether that meant he or she could not be fair, prospective Juror No. 105 responded, Yes, I am telling you I cannot be fair to him. Later, the trial court granted defense counsels motion to exclude prospective Juror No. 105.

Prospective Juror No. 172 informed the trial court he or she was a prosecution witness in an assault case 20 years earlier and stated, [U]nfortunately, that might have bearing on -- not that I have a vendetta. But its just hard for me to presume innocence, based on the case that I was involved in. Prospective Juror No. 172 stated that involvement would bear on his or her ability to be fair and impartial in this case. After both counsel stipulated, the court excused prospective Juror No. 172.

The trial court asked prospective Juror No. 164 whether his or her previous theft related experiences would bear on his or her ability to be a fair and impartial juror. Prospective Juror No. 164 responded, No, not per se. My biggest concern is just the number of counts on the case. The court explained jurors must evaluate each count separately and according to the law and asked whether he or she could do that. Prospective Juror No. 164 responded, I can try to do my best, Sir. I just think I tend to make up my mind about people when I see them. So, its just like the nature of my business is, like, you have to make your judgment of a person when you first meet them. When prospective Juror No. 164 said he or she was having issues with the presumption of innocence because of the way Bergeron acts[,] the court asked whether that meant he or she could not be fair, and he or she responded, Yes, Sir. After both counsel stipulated, the court excused prospective Juror No. 164.

Defense counsel did not move to discharge the entire venire panel or for a mistrial. The trial court swore in a jury.

Relying on People v. Medina (1990) 51 Cal.3d 870 (Medina), People v. Martinez (1991) 228 Cal.App.3d 1456 (Martinez), Mach v. Stewart (9th Cir. 1997)

137 F.3d 630 (Mach), and Paschal v. United States (5th Cir. 1962) 306 F.2d 398 (Paschal), Bergeron contends he received ineffective assistance of counsel because his defense counsel should have requested the trial court declare a mistrial, discharge the entire jury venire, and begin jury selection anew. As we explain below, Bergerons defense counsels representation did not fall below an objective standard of reasonableness under prevailing professional norms.

[T]he trial court possesses broad discretion to determine whether or not possible bias or prejudice against the defendant has contaminated the entire venire to such an extreme that its discharge is required. [S]uch a drastic remedy is [not] appropriate as a matter of course merely because a few prospective jurors have made inflammatory remarks. Unquestionably, further investigation and more probing voir dire examination may be called for in such situations, but discharging the entire venire is a remedy that should be reserved for the most serious occasions of demonstrated bias or prejudice, where interrogation and removal of the offending venirepersons would be insufficient protection for the defendant. (Medina, supra, 51 Cal.3d at p. 889.)
In Medina, prospective jurors made the following statements: (1) even his own lawyers think hes guilty, (2) they ought to have [sic] him and get it over with[,] (3) in frontier justice style, and (4) bring the guilty S.O.B. in, well give him a trial, and then hang him. (Medina, supra, 51 Cal.3d at p. 888.) Defendant moved to discharge the entire venire, and the trial court denied the motion without prejudice. The California Supreme Court concluded the trial court did not err in refusing to discharge the entire venire. (Id. at p. 889.)

In Martinez, prospective jurors made statements that our criminal justice system was flawed, that only wealthy individuals receive justice, that people accused and convicted of crimes are released too early only to commit more crimes, that defendant could not speak English, that because he was arrested and was in court he must have done something wrong, and that defendant would not be in court if the district attorney did not think it had a strong case and could win a conviction. (Martinez, supra, 228 Cal.App.3d at pp. 1468-1473.) Defendant moved to discharge the entire jury venire, and the trial court denied the request. (Id. at pp. 1461-1467.) The court concluded the trial court did not abuse its discretion in denying defendants motion. (Id. at p. 1465.)

Relying on Medina and Martinez, Bergeron claims his defense counsel was ineffective because in those cases, defense counsel requested a mistrial and moved to discharge the entire venire panel, but his defense counsel did not. In Medina and Martinez, the court concluded defendants were not denied the right to an impartial jury based on the prospective jurorss comments. The comments here were similar to the comments in Martinez, and not as egregious as the comments in Medina. At the time of trial, it was well settled discharging an entire venire panel was a drastic remedy that was reserved for only the most serious occasions of demonstrated bias or prejudice. Discharging an entire venire panel is not appropriate merely because a few prospective jurors have made inflammatory remarks[,] as they did here. (Medina, supra, 51 Cal.3d at p. 889.) Therefore, Bergerons defense counsels performance did not fall below an objective standard of reasonableness under prevailing professional norms because any motion to dismiss the entire venire panel would have been futile.

Bergerons reliance on Mach and Paschal is also misplaced. In Mach, defendant was charged with sexual conduct with a minor. During voir dire, a prospective juror stated she was a social worker who had worked with children for a few years. (Mach, supra, 137 F.3d at pp. 632-633.) She stated four separate times that she had never been involved in a case like this where the childs statements were untrue. (Ibid.) The court concluded, Given the nature of [the jurors] statements, the certainty with which they were delivered, the years of experience that led to them, and the number of times that they were repeated, we presume that at least one juror was tainted and entered into jury deliberations with the conviction that children simply never lie about being sexually abused. (Id. at p. 633.)
In Paschal, defendant was charged with multiple counts of counterfeiting. (Paschal, supra, 306 F.2d at p. 398.) After the jury had been sworn and qualified, one juror stated he was a bank director, and defendant had passed some counterfeit money at his bank three years earlier. (Id. at p. 399.) The court concluded, When [a juror] comes forward with the conclusion of guilt based upon some special information or knowledge he has gained, . . . the influence on the minds of the other jurors is inevitable. Such statements appear in the guise of the real truth. (Ibid.)
Both Mach and Paschal are inapposite. They involved jurors who possessed special expertise, or special knowledge or information, that had a direct bearing on the subject matter of the cases. Here, none of the jurors stated they possessed any special expertise, or special knowledge or information, that was the subject matter of the case. Their comments were general statements regarding the judicial system and how, based on common experience, they believed it worked. We cannot presume the other prospective jurors were tainted by the above-described statements. Therefore, we cannot conclude defense counsel was ineffective for not requesting a mistrial and asking the trial court to discharge the entire jury venire. Because we find defense counsels performance was not deficient, we need not address the prejudice element.

2. Instructional Error

Bergeron contends the trial court erroneously failed to instruct the jury sua sponte with CALJIC No. 2.15 as to counts 2 and 3. Not so.

CALJIC No. 2.15, Possession of Stolen Property, states: If you find that a defendant was in [conscious] possession of recently [stolen] [extorted] property, the fact of that possession is not by itself sufficient to permit an inference that the defendant __________ is guilty of the crime of __________. Before guilt may be inferred, there must be corroborating evidence tending to prove defendants guilt. However, this corroborating evidence need only be slight, and need not by itself be sufficient to warrant an inference of guilt. [] As corroboration, you may consider [the attributes of possessiontime, place and manner,] [that the defendant had an opportunity to commit the crime charged,] [the defendants conduct,] [[his] . . . false or contradictory statements, if any,] [and] [or] [other statements [he] . . . may have made with reference to the property] [a false account of how [he] . . . acquired possession of the stolen property] [any other evidence which tends to connect the defendant with the crime charged].

In a criminal case, a trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citation.] (People v. Earp (1999)

20 Cal.4th 826, 885.) The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jurys understanding of the case. [Citation.] (People v. Breverman (1998) 19 Cal.4th 142, 154.)

Count 2 charged Bergeron with carjacking, and count 3 charged him with unlawfully taking a vehicle. Although there is case authority supporting Bergerons contention the trial court has a sua sponte duty to instruct the jury with CALJIC No. 2.15 in theft-related cases (see People v. Clark (1953) 122 Cal.App.2d 342, 346), the issue is currently before the California Supreme Court in People v. Najera, review granted April 26, 2006, S141654. The Attorney General urges this is not the type of case in which the trial court had a sua sponte duty to instruct the jury with CALJIC No. 2.15. We need not get mired in this dispute, however, because even assuming the court erred in failing to instruct the jury sua sponte with CALJIC No. 2.15, we conclude any error was harmless.

The adequacy of jury instructions is considered by examining the charge as a whole. (People v. Holt (1997) 15 Cal.4th 619, 677.) Here, the trial court gave

numerous instructions ensuring the jury did not convict Bergeron on counts 2

and 3 based solely on his possession of Fosters vehicle. The court properly instructed the jury with the elements of both crimes, CALJIC No. 9.46, carjacking, and CALJIC

No. 14.36, unlawfully taking a vehicle. Additionally, the court instructed the jury with CALJIC No. 2.01, Sufficiency of Circumstantial EvidenceGenerally, which instructed the jury on the permissible uses of circumstantial evidence. Finally, the court instructed the jury with CALJIC No. 2.90, Presumption of InnocenceReasonable DoubtBurden of Proof, which instructed the jury Bergeron was presumed innocent and it could not convict him of any crime unless the district attorney proved him guilty beyond a reasonable doubt. We conclude that based on all the instructions, it is not reasonably probable Bergeron would have received a better result had the trial court instructed the jury sua sponte with CALJIC No. 2.15. (People v. Mendoza (2000)

24 Cal.4th 130, 176-177.)

3. Sufficiency of the Evidence

a. Counts 2 and 3

Bergeron argues the evidence was insufficient on the issue of identity, i.e., that he was the person who carjacked Foster and unlawfully took her vehicle. Again, we disagree.

The proper test to determine a claim of insufficient evidence in a criminal case is whether, on the entire record, a rational trier of fact could find appellant guilty beyond a reasonable doubt. [Citations.] In making this determination, the appellate court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] . . . [O]ur task . . . is twofold. First, we must resolve the issue in the light of the whole record . . . . Second, we must judge whether the evidence of each of the essential elements . . . is substantial . . . . [Citation.] (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1339, superseded by statute on other grounds as stated in People v. Franz (2001) 88 Cal.App.4th 1426, 1442.)

Relying on the fact the probation officers description of Bergeron was different from Fosters description of him. Bergeron asserts the evidence was insufficient to demonstrate he was the person who carjacked Foster and unlawfully took her vehicle. Foster testified Bergeron was a tan Caucasian, about six feet tall, weighing about

180 pounds, with dark brown hair, and a full unkempt beard and mustache. The probation report states Bergeron was a 38 years old, Portuguese male, with black hair and brown eyes, five feet and nine inches tall, and weighing 235 pounds.

Although the terrified crime victims description did not match Bergeron, there was other evidence against him. Even though Foster could not be certain, after she viewed the live lineup, she thought the man in position three, Bergeron, was the perpetrator. Additionally, five days later, Bergeron was seen getting into a red sports utility vehicle with license plate number 7K00735. On April 1, 2004, a police officer found Fosters Honda Passport with license plates reading 7K00735. Based on the entire record, there was sufficient evidence for the jury to conclude Bergeron carjacked Foster and unlawfully took her vehicle as charged in counts 2 and 3.

b. Prior Nevada Conviction

Bergeron contends insufficient evidence supports the finding his prior Nevada conviction for robbery qualifies as a serious felony offense in California. As we explain below, we agree.

A conviction in another jurisdiction qualifies as a strike if it contains all of the elements required for a crime to be deemed a serious or violent felony in this state. [Citations.] A conviction qualifies for the five-year enhancement under section 667, subdivision (a)(1)[,] if it includes all the elements of a serious felony. The prosecution has the burden of proving beyond a reasonable doubt each element of a prior conviction used to enhance a defendants sentence. [Citation.] In determining the truth of the existence of a prior felony conviction in another jurisdiction for purposes of the

[Three Strikes law] and other enhancement laws, the [trier of fact] may look to the entire record of the conviction to determine the substance of the prior foreign conviction; but 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. [Citation.] [] When, as here, a defendant challenges on appeal the sufficiency of the evidence to sustain the trial courts finding that the prosecution has proven all the elements of the enhancement, we must determine whether substantial evidence supports that finding. The test on appeal is simply whether a reasonable trier of fact could have found that the prosecution sustained its burden of proving the enhancement beyond a reasonable doubt. [Citation.] In making this determination, we review the record in the light most favorable to the trial courts findings. [Citation.] (People v. Rodriguez (2004) 122 Cal.App.4th 121, 128-129 (Rodriguez).)

Nevada Revised Statute, title 15, Chapter 200, section 200.380 (hereafter section 200.380) provides, Robbery is the unlawful taking of personal property from the person of another, or in his presence, against his will, by means of force or violence or fear of injury, immediate or future, to his person or property, or the person or property of a member of his family, or of anyone in his company at the time of the robbery. A taking is by means of force or fear if force or fear is used to: [] (a) Obtain or retain possession of the property; [] (b) Prevent or overcome resistance to the taking; or [] (c) Facilitate escape. [] The degree of force used is immaterial if it is used to compel acquiescence to the taking of or escaping with the property. A taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of force or fear.

In California, Robbery is defined as the taking of personal property of some value, however slight, from a person or the persons immediate presence by means of force or fear, with the intent to permanently deprive the person of the property.

( 211; [citation].) (People v. Marshall (1997) 15 Cal.4th 1, 34.)

Bergeron claims his Nevada conviction for robbery does not qualify as a serious felony offense in California because Nevadas robbery statute does not require three of the elements Californias robbery statute requires.Specifically, Bergeron asserts section 200.380 does not include the following three elements: (1) the specific intent to permanently deprive the victim of his or her property, (2) immediate fear, and (3) taking and asportation.

The Attorney General argues the amended information[3] and the judgment of conviction provide sufficient evidence on the three elements Bergeron disputes.[4] Acknowledging neither the information nor the amended information were included in exhibit 20, the district attorneys packet used to prove the prior conviction,[5] the Attorney General asserts these documents were presented to the court with Bergerons motion to dismiss the prior convictions.[6]Bergeron counters the trial court could not rely on the amended information because it was not included in exhibit 20 and was not admitted into evidence. We agree with Bergeron on this point.

Contrary to the Attorney Generals assertion, the district attorney did not introduce the information or the amended information into evidence. The pages the Attorney General cites to are the transcript of the preliminary hearing and Bergerons motion to dismiss. Bergeron attached the information and amended information as exhibit B to his motion to dismiss.

Although we agree with the Attorney General that an amended information and a judgment of conviction are part of the record of conviction (People v. Guerrero (1988) 44 Cal.3d 343, 355), here, the district attorney did not introduce the amended information in exhibit 20 or request it be moved into evidence. The Attorney General does not provide a record cite, and we found none, where the court received the amended information into evidence. The trial court did state, And I might indicate that, in terms of the court evaluating this, its the courts intention to also review the points and authorities filed by both sides in relation to the [section] 995. However, there was no clear indication the court was considering the exhibits attached to Bergerons motion to dismiss.

The Attorney General relies on the fact that at the trial on the prior convictions, defense counsel argued the amended information was the operative pleading and, therefore, the trial court undoubtedly relied upon it. We will not make that assumption based on this record. As we explain above, the court never received the amended information into evidence at the trial on the priors. Therefore, the only documents the trial court could properly rely on in determining the truth of the prior Nevada conviction were included in exhibit 20.

Section 995 authorizes a trial court to set aside an information if it is not supported by reasonable or probable cause. The section 995 hearing was independent of and previous to the trial. We found no authority for the proposition, and the Attorney General cites to none, that states in a trial on the priors, a court may consider an exhibit attached to a motion to dismiss strike priors that has not been offered and admitted into evidence. Due process requires the prosecution to shoulder the burden of proving each element of a sentence enhancement beyond a reasonable doubt. (People v. Tenner (1993) 6 Cal.4th 559, 566; Rodriguez, supra, 122 Cal.App.4th at pp. 128-129 [prosecution has burden of proving beyond a reasonable doubt each element of prior conviction used to enhance sentence].) Had Bergeron not waived jury trial on the priors, there would have been a jury trial, and the jury would not have had before it the amended information. We cannot believe the trial court would have given the jury Bergerons motion to dismiss and its attached exhibits as evidence upon which it could determine the truth of the prior Nevada conviction.

Because we have concluded the amended information was not properly before the trial court, the only document in exhibit 20 that would aid us in our determination is Bergerons judgment of conviction. The judgment of conviction stated Bergeron pled guilty to violating section 200.380. It then stated the trial court sentenced him to ten (10) years in the Nevada Department of Prisons with credit for time served of 108 days, said sentence to run concurrent with sentence [Bergeron] is serving in Kansas. In addition, [Bergeron] to pay $157.00 restitution to the victim.

Needless to say, the judgment of conviction includes no facts supporting a finding Bergerons prior Nevada conviction qualifies as a serious felony offense in California. We may conclude Bergeron possessed $157 of the victims money, but this alone is insufficient to prove all the elements of Californias robbery statute, including a specific intent to permanently deprive the victim of his property. Therefore, insufficient evidence supports the finding his prior Nevada conviction for robbery qualifies as a serious felony offense in California.

4. Section 654

Relying on section 654,Bergeron argues his sentence on count 6 must be stayed because it is part of an indivisible course of conduct with count 5. We disagree.

Section 654 prohibits multiple punishment for multiple crimes arising out of a single act or omission or incidental to a single intent and objective. Whether a course of conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. [Citation.] If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not more than one. [Citation.] If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.] (People v. Cleveland (2001)

87 Cal.App.4th 263, 267-268 (Cleveland).)

On appeal, [w]e review the courts determination of [Bergerons] separate intents for sufficient evidence in a light most favorable to the judgment, and presume in support of the courts conclusion the existence of every fact the trier of fact could reasonably deduce from the evidence. [Citation.] (Cleveland, supra, 87 Cal.App.4th

at p. 271.)

Section 211 defines robbery 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.

Section 215 states: (a) Carjacking is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear. [] . . . [] (c) This section shall not be construed to supersede or affect [s]ection 211. A person may be charged with a violation of this section and [s]ection 211. However, no defendant may be punished under this section and [s]ection 211 for the same act which constitutes a violation of both this section and [s]ection 211.

The trial court sentenced Bergeron to four consecutive 25-year terms on counts 1, 2, 4, 5, and 7. The court also sentenced him to two consecutive five-year terms on the prior out-of-state convictions. The court sentenced him to 25 years on count 6 to run concurrently with count 5. Bergeron claims the court should have stayed sentencing on count 6 because the attempted carjacking of Martinez was part of an indivisible course of conduct with the robbery of her purse and keys. Not so.

Contrary to Bergerons claim, there was sufficient evidence he possessed multiple objectives. Martinez parked her vehicle in a gas station parking lot and waited for her children to get out of school. When Bergeron got into the passenger seat of Martinezs vehicle, he told her to start the vehicle. Based on this evidence, the court could conclude one of Bergerons objectives was to carjack Martinez. When Martinez refused to start the vehicle, Bergeron started it and Martinez fled. The court could infer that because Bergeron was in the passengers seat, he could not drive the vehicle, so he stopped the car. Bergeron then took Martinezs purse and car keys. Based on these facts, the court could infer Bergeron possessed a second objective, robbing Martinez. Therefore, we conclude there was substantial evidence to support the trial courts conclusion Bergeron possessed multiple objectives when he attempted to carjack Martinez and then rob her.

DISPOSITION

The convictions are affirmed. We reverse the trial courts finding Bergerons prior Nevada conviction robbery qualifies as a serious felony offense in California. The sentence is vacated, and the matter is remanded for further proceedings.

OLEARY, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line attorney.

[1] The bank supervisor thought the vehicle was an Isuzu Rodeo or a Nissan Xterra. However, when the district attorney showed him a photograph of Fosters vehicle, he testified it looked like the vehicle he saw.

[2] All further statutory references are to the Penal Code, unless otherwise indicated.

[3] The amended information stated Bergeron took the following personal property: wallet and contents, including lawful money of the United States, from the person of Mark Fry, or in his presence, by means of force or violence, or fear of injury to, and without the consent and against the will of the said Mark Fry.

[4] Bergeron states it is unclear whether the Attorney General relies on both the original information and the amended information to support its claim there was sufficient evidence. We conclude it is only the latter. The Attorney General contends, The amended information and the judgment of conviction, which clearly are part of the record of conviction, satisfy all three elements [Bergeron] complains about. Bergeron pled guilty to the amended information, not the original information. We note though that the original information included a greater factual basis for Bergerons guilty plea.

[5] Exhibit 20 was the record of Bergerons prior Nevada conviction. It consisted of the following: (1) a Nevada Department of Prisons photograph of Bergeron; (2) a written physical description of Bergeron indicating he was sentenced for robbery; (3) a document entitled Judgment of Conviction (Plea); (4) Bergerons fingerprint exemplar stating Bergeron was sentenced to 10 years for robbery; and (5) a certificate of authenticity of the records.

[6] Apparently, this was an oversight. The district attorney did file a Complaint/Information in the Kansas case.