People v. Delgado

• Decision Date: 29 May 2008
• Docket Number: No. S141282.,S141282.
• Citation: 77 Cal.Rptr.3d 259,43 Cal.4th 1059,183 P.3d 1226
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jesse Joe DELGADO, Defendant and Appellant.

183 P.3d 1226

77 Cal.Rptr.3d 259

43 Cal.4th 1059

The PEOPLE, Plaintiff and Respondent, v. Jesse Joe DELGADO, Defendant and Appellant.

No. S141282.

Supreme Court of California.

May 29, 2008.

William D. Farber, under appointment by the Supreme Court, San Rafael, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.

BAXTER, J.

After a jury convicted defendant of felony offenses, a court trial was held on the allegation, for purposes of enhancing his sentence, that he had a prior serious felony conviction. The statute under which defendant was previously convicted — Penal Code section 245, subdivision (a)(1) (section 245(a)(1))¹ — punishes assault committed either by means "likely to produce great bodily injury" (GBI), or by use of "a deadly weapon ... other than a firearm." Only the latter version qualifies as a serious felony.

As sole proof of a prior serious felony conviction, the prosecution introduced a package of certified documents pertaining to the conviction, including the abstract of judgment. The abstract specified the statute violated as "[Penal Code section] 245(A)(1)" and described the crime as "Asslt w DWpn." The trial court found the prior serious felony allegation true and lengthened defendant's prison sentence accordingly. The Court of Appeal affirmed.

Defendant does not dispute that the abbreviated verbal notation on the abstract of judgment stands for the words "assault with a deadly weapon." The notation contains no reference to the GBI prong of section 245(a)(1). Nonetheless, defendant insists this notation was insufficient to prove his prior conviction had occurred under the deadly weapon prong of section 245(a)(1), and was thus for a serious felony. We agree with the Court of Appeal that the evidence was sufficient. We will therefore affirm the judgment of that court.

FACTS AND PROCEDURE

On June 23, 2003, defendant shoplifted several items, including a bottle of liquor, from an Albertson's market. The store's loss prevention officer saw the incident, followed defendant outside, and attempted to stop him in the parking lot. Defendant pulled out a knife and told the officer to get away. When the officer continued to pursue, defendant threw the liquor bottle, hitting the officer.

A jury convicted defendant of count 1, second degree robbery (§§ 211, 212.5, subd. (c)), and count 2, second degree commercial burglary (§§ 459, 460, subd. (b)), as charged in the information. As to count 1, the jury found true the allegation that defendant personally used a dangerous and deadly weapon, a bottle. (§ 12022, subd. (b)(1).)

The information also alleged, for purposes of sentence enhancement on both counts, that defendant had suffered a prior conviction for violation of section 245(a)(1). This conviction, the information asserted, constituted a serious felony for purposes of section 667, subdivision (a)(1) (consecutive five-year enhancement for current "serious felony" when defendant has prior "serious felony" conviction), and a serious or violent felony for purposes of the "Three Strikes" law (§§ 667, subds. (d)-(e), 1170.12, subds. (b)-(c)). Further, the information alleged, defendant had served a prison term for this prior offense (§ 667.5, subdivision (b) [one-year consecutive enhancement of current prison term for prior prison term]).

Defendant waived his right to a jury trial on the prior offense allegations, and they were tried to the court. As evidence of the prior conviction, its nature, and the prison term served, the People introduced a package of documents pertaining to the prior offense, as certified by a Department of Corrections custodian of records. (§ 969b.) The documents included a prison chronological history, an abstract of judgment, a fingerprint card, a photo of defendant, and a Federal Bureau of Investigation (FBI) form.

The abstract of judgment indicated that, on May 18, 1999, defendant had pled guilty to two felony counts. The second count — the one that concerns us here — was specified by handwritten notations in three side-by-side boxes on the form. In the leftmost box, entitled "CODE," appeared the letters "PC." In the middle box, entitled "SECTION NUMBER," appeared the notation "245(A)(1)." In the rightmost box, entitled "CRIME," appeared the notation "Asslt w DWpn." Defendant presented no evidence concerning the nature of the prior conviction.

The court found true that defendant had suffered a prior serious felony conviction for violation of section 245(a)(1), "specifically assault with a deadly weapon." The court sentenced defendant to the midterm of three years for count 1, the current robbery conviction, with a concurrent midterm of two years for count 2, the current burglary conviction. In light of the prior serious felony conviction, the current robbery conviction was deemed a second strike under the "Three Strikes" law, and the term for this offense was doubled accordingly. Finally, the court added a five-year consecutive enhancement for the prior serious felony conviction under section 667, subdivision (a)(1), for a total term of 11 years.

On appeal, defendant raised the single contention that there was insufficient evidence the prior conviction was for a serious felony. The Court of Appeal disagreed and affirmed the judgment. We granted review. We now conclude the Court of Appeal was correct.

DISCUSSION

Defendant urges, as he did in the Court of Appeal, that the abbreviated notation "Asslt w DWpn" on the abstract of judgment for his prior conviction, standing alone, is insufficient to permit the inference that the conviction was for a serious felony. We review the relevant principles.

As noted above, the prison sentence for a current serious felony conviction is subject to a five-year consecutive enhancement if the defendant suffered a prior conviction for a serious felony. (§ 667, subd. (a)(1).)² A prior serious felony conviction also counts as a strike, requiring that the prison sentence for a second felony conviction be doubled. (§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1).)

Defendant's alleged prior serious felony conviction was for violating section 245(a)(1). That statute makes it a felony offense to "commit[] an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury." (Ibid., italics added.)

"[A]ssault with a deadly weapon" is a serious felony. (§ 1192.7, subd. (c)(31).) On the other hand, while serious felonies include all those "in which the defendant personally inflicts great bodily injury on any person" (id., subd. (c)(8), italics added), assault merely by means likely to produce GBI, without the additional element of personal infliction, is not included in the list of serious felonies. Hence, as the parties acknowledge, a conviction under the deadly weapon prong of section 245(a)(1) is a serious felony, but a conviction under the GBI prong is not.

The People must prove each element of an alleged sentence enhancement beyond reasonable doubt. (People v. Tenner (1993) 6 Cal.4th 559, 566, 24 Cal.Rptr.2d 840, 862 P.2d 840 (Tenner).) Where, as here, the mere fact that a prior conviction occurred under a specified statute does not prove the serious felony allegation, otherwise admissible evidence from the entire record of the conviction may be examined to resolve the issue. (People v. Reed (1996) 13 Cal.4th 217, 222-223, 52 Cal.Rptr.2d 106, 914 P.2d 184 (Reed); People v. Guerrero (1988) 44 Cal.3d 343, 355, 243 Cal.Rptr. 688, 748 P.2d 1150 (Guerrero); see People v. Myers (1993) 5 Cal.4th 1193, 1201, 22 Cal.Rptr.2d 911, 858 P.2d 301.)

A common means of proving the fact and nature of a prior conviction is to introduce certified documents from the record of the prior court proceeding and commitment to prison, including the abstract of judgment describing the prior offense. (Pen.Code, § 969b; Evid.Code, § 1280 [hearsay exception for contemporaneous official record]; see, e.g., People v. Prieto (2003) 30 Cal.4th 226, 258-259, 133 Cal.Rptr.2d 18, 66 P.3d 1123 (Prieto); People v. Henley (1999) 72 Cal.App.4th 555, 559-560, 85 Cal.Rptr.2d 123 (Henley); People v. Haney (1994) 26 Cal. App.4th 472, 475, 31 Cal.Rptr.2d 547 (Haney).)

"[The] trier of fact is entitled to draw reasonable inferences from certified records offered to prove a defendant suffered a prior conviction...." (Henley, supra, 72 Cal.App.4th 555, 561, 85 Cal.Rptr.2d 123; see also Haney, supra, 26 Cal.App.4th 472, 475, 31 Cal.Rptr.2d 547.) "[O]fficial government records clearly describing a prior conviction presumptively establish that the conviction in fact occurred, assuming those records meet the threshold standards 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." (People v. Epps (2001) 25 Cal.4th 19, 27, 104 Cal.Rptr.2d 572, 18 P.3d 2.)

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. (Prieto, supra, 30 Cal.4th 226, 258, 133 Cal. Rptr.2d 18, 66 P.3d 1123; Haney, supra, 26 Cal.App.4th 472, 475-476, 31 Cal.Rptr.2d 547.)

However, if the prior conviction was for an offense that can be committed in multiple ways, and the record of the conviction does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense. (...