People v. Henley

• Decision Date: 25 May 1999
• Docket Number: No. F028293,F028293
• Citation: 85 Cal.Rptr.2d 123,72 Cal.App.4th 555
• Court: California Court of Appeals Court of Appeals
• Parties: , 99 Cal. Daily Op. Serv. 3954, 1999 Daily Journal D.A.R. 5016 The PEOPLE, Plaintiff and Respondent, v. Darrell Anthony HENLEY, Defendant and Appellant.

Page 123

85 Cal.Rptr.2d 123

72 Cal.App.4th 555, 99 Cal. Daily Op. Serv. 3954,

1999 Daily Journal D.A.R. 5016

The PEOPLE, Plaintiff and Respondent, v. Darrell Anthony HENLEY, Defendant and Appellant.

No. F028293.

Court of Appeal, Fifth District, California.

May 25, 1999.

Certified for Partial Publication. ^*

Bradley A. Bristow, Sacramento, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Shirley A. Nelson and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

THAXTER, J.

A felony is "serious" if the defendant personally inflicts great bodily injury on any person other than an accomplice. When the prior conviction of such a felony is alleged for purposes of the three strikes law, must the prosecution prove that the injured party was not an accomplice? We will answer this question in the affirmative. Because the trial court placed the burden of proof on the defendant, and because substantial evidence does not support the court's finding that the prior felony was serious, we will reverse.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying facts are not disputed and not at issue here. Appellant Darrell Anthony Henley sold heroin on February 28, 1996, and on April 11, 1996. In two cases which were consolidated he pleaded no contest to two counts of selling heroin (Health & Saf.Code, § 11352, subd. (a).) The informations further alleged that on or about May 11, 1992, appellant suffered a prior felony conviction for violating Vehicle Code section 2800.3, evading a peace officer causing injury or death. The prior felony was alleged to be "serious" within the meaning of the three strikes law. ¹ Appellant admitted the 1992 prior, reserving court trial on the issue of whether that conviction qualified as a strike. The parties stipulated that appellant would be sentenced to a prison term of five years four months in the event the strike was not sustained, eight years eight months in the event it was.

After taking the contested issue under submission, the court found the prior conviction qualified as a strike for purposes of the three strikes law. The court stated that appellant had the burden of proving that the party injured in commission of the prior felony was an accomplice. The record presented included a transcript of the change of plea proceeding in the earlier case. Because it was silent on the injured party's status, the court found that person was not an accomplice. Further finding evidence of great bodily injury, the court concluded that the prior conviction was of a serious felony and sentenced appellant to a total term in state prison of eight years and eight months.

The trial court issued a certificate of probable cause pursuant to section 1237.5. Appellant contends the court below erred in placing the burden of proof on him. He also argues there is insufficient evidence to support the court's findings that the injured party in the prior case was not an accomplice and suffered great bodily injury.

DISCUSSION

1. The trial court's finding that the person injured in appellant's prior felony was not an accomplice is not supported by substantial evidence.

Appellant admitted that on or about May 11, 1992, he was convicted of violating Vehicle Code section 2800.3. That statute provides, in pertinent part at all times relevant here:

"Whenever willful flight or attempt to elude a pursuing peace officer in violation of [Vehicle Code] Section 2800.1 proximately causes death or serious bodily injury to any person, the person driving the pursued vehicle, upon conviction, shall be punished by imprisonment in the state prison ..., by imprisonment in the county jail ..., or by a fine ...."

For purposes of the three strikes law, a serious felony is any felony listed in section 1192.7, subdivision (c). That statute specifies a number of felonies, and, in subdivision (c)(8) provides:

"... '[S]erious felony' means ... [p] any other felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice ...."

Section 1192.8 provides:

"(b) For purposes of subdivision (c) of Section 1192.7, 'serious felony' also means any violation of ... Section 2800.3 ... of the Vehicle Code, when any of these offenses involve the personal infliction of great bodily injury on any person other than an accomplice ...."

It is thus apparent that a violation of Vehicle Code section 2800.3 is not a serious felony unless (1) the defendant personally inflicted great bodily injury, and (2) the injured person was not an accomplice.

A. Evidence of the injured party's status was inconclusive.

Generally, the prosecutor proves a prior conviction by introducing certified copies of the abstract of judgment and records of the Department of Corrections showing imprisonment. (§ 969b; People v. Hoerler (1962) 208 Cal.App.2d 402, 406-407, 25 Cal.Rptr. 209.) Other cases have held proper for consideration to prove a prior conviction a variety of items, including a change of plea form executed by the defendant in the previous conviction (People v. Carr (1988) 204 Cal.App.3d 774, 778, 251 Cal.Rptr. 458), the charging documents and no contest plea reflected in a minute order (People v. Harrell (1989) 207 Cal.App.3d 1439, 1444, 255 Cal.Rptr. 750), a complaint and Tahl ² forms admissions (People v. Smith (1988) 206 Cal.App.3d 340, 345, 253 Cal.Rptr. 522), a reporter's transcript of the defendant's guilty plea together with the information (People v. Batista (1988) 201 Cal.App.3d 1288, 1293, 248 Cal.Rptr. 46), a probation report (People v. Garcia (1989) 216 Cal.App.3d 233, 237, 264 Cal.Rptr. 662), and a preliminary hearing transcript (People v. Castellanos (1990) 219 Cal.App.3d 1163, 1170, 269 Cal.Rptr. 93). Here, the record provided by the prosecutor consisted of the reporter's transcript of appellant's plea in the previous conviction dated May 11, 1992, the criminal complaint dated April 14, 1992, and the "Felony Docket" form dated May 11, 1992.

Once the prosecutor presents prima facie evidence of conviction, the trial court is allowed to make reasonable inferences from the facts presented. If there is no evidence to the contrary, the trial court may consider the abstract and the facts of the particular case, and utilizing the official duty presumption, find a defendant was convicted of and served the term of imprisonment for the listed felony. (People v. Crockett (1990) 222 Cal.App.3d 258, 262, 271 Cal.Rptr. 500.)

The transcript of appellant's plea to a violation of section 2800.3 of the Vehicle Code was considered by the trial court. At the time of the plea, the following exchange took place between the court and appellant:

"THE COURT: [W]hat is your plea, sir, to a violation of Vehicle Code Section 2800.3, evading a peace office, causing injury, where it's alleged that on or about April 11th of 1992 you did willfully, unlawfully and feloniously evade and attempt to evade a pursuing peace officer, proximately causing serious bodily injury to another? [p] Is your plea guilty or no contest, sir?

"[APPELLANT]: No contest."

The factual basis for the plea was explained by the prosecutor as follows: "... [A]n officer observed [appellant] driving a motorcycle at high speed. After attempting to pull the [appellant] over, he activated his lights and siren. [Appellant] failed to yield. A high-speed chase in excess of 70 miles an hour ensued on surface streets. [Appellant] eluded him and eventually ran a stop sign and ran into another vehicle and injured the passenger on the back of his motorcycle in which he[ ³] received a back injury and broken ankle." Appellant's counsel agreed to this description of the crime.

In its analysis of whether appellant's prior conviction constituted a "serious" felony for purposes of the three strikes law, the trial court stated, in pertinent part:

"... On its face, the transcript supports the finding that [appellant] personally caused the injury (ran into another vehicle and injured the passenger on the back of his motorcycle) and that the injury was great bodily injury (broken ankle). Since the burden of proving a person is an accomplice is on the [appellant] (CALJIC 3.19), this Court concludes that the silent record does not establish this and the Court finds that the passenger was not an accomplice. Accordingly, the factual basis and the plea set forth in the transcript is [sic ] adequate to support the conclusion that this particular Vehicle Code Section 2800.3 conviction is a prior serious felony under Penal Code Section 667(d) ...."

The question then is whether the transcript of appellant's plea in the previous conviction or the criminal complaint filed in the case, as interpreted by the trial court, is substantial evidence that the injured individual was not an accomplice.

The definition of substantial evidence in a criminal case is a familiar one. It is "evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738; People v. Jones (1990) 51 Cal.3d 294, 314, 270 Cal.Rptr. 611, 792 P.2d 643.)

A trier of fact is entitled to draw reasonable inferences from certified records offered to prove a defendant suffered a prior conviction and served a prison term. (People v. Haney (1994) 26 Cal.App.4th 472, 475, 31 Cal.Rptr.2d 547.) Here, we think the trial court's inference that the injured individual was not an accomplice is without "solid value" unless, as the court stated, the burden of proof lay with appellant.

Whether the injured person was or was not an accomplice was not an issue at the time appellant was convicted of violating Vehicle Code section 2800.3. Therefore, neither the plea transcript nor the...