People v. Purata

• Decision Date: 01 February 1996
• Docket Number: No. D022022,D022022
• Citation: 49 Cal.Rptr.2d 664,42 Cal.App.4th 489
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 809, 96 Daily Journal D.A.R. 1222 The PEOPLE, Plaintiff and Respondent, v. Alfredo PURATA, Defendant and Appellant.

Page 664

49 Cal.Rptr.2d 664

42 Cal.App.4th 489, 96 Cal. Daily Op. Serv. 809,

96 Daily Journal D.A.R. 1222

The PEOPLE, Plaintiff and Respondent, v. Alfredo PURATA, Defendant and Appellant.

No. D022022.

Court of Appeal, Fourth District, Division 1, California.

Feb. 1, 1996.

Rehearing Denied Feb. 23, 1996.

Review Denied April 25, 1996.

Dain & Li, Anthony J. Dain and Gisela Caldwell, San Diego, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, M. Howard Wayne, Holly D. Wilkens and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.

HUFFMAN, Associate Justice.

Alfredo Purata was convicted by jury of four counts of forcible rape and several other related sex and false imprisonment offenses, and dissuading a witness. (PEN.CODE, §§ 261¹, subd. (a)(2), 288a, subd. (c), 289, subd. (a), 243.4, subd. (a), 236/237, 136.1, subd. (c)(1).) Thereafter, the court found that a 1982 Texas attempted capital murder conviction qualified both as a serious prior felony and as a strike within the meaning of the three strikes law. (§ 667, subds. (b)-(i).) The trial court also found true the allegations of one prison prior within the meaning of section 667.5, subdivision (b). ²

Purata was sentenced to 112 years, 4 months in state prison, which included doubling of the base terms on counts 1 through 7, to run consecutively. Additional consecutive sentences were imposed on the remaining counts and on the Vehicle Code section 10851 prison prior. The trial court declined to impose an additional five-year enhancement for the prior serious felony (the 1982 Texas attempted capital murder conviction) because the same conviction was used to qualify as a strike. (§ 667, subd. (a)(1).)

Purata appeals, contending the trial court erroneously found on insufficient evidence that the 1982 Texas conviction constituted a valid qualifying prior for purposes of the three strikes law. The Attorney General has responded, contending the 1982 conviction does represent a valid qualifying prior and, further, that the trial court erroneously failed to impose the mandatory five-year enhancement under section 667, subdivision (a)(1), based on that same prior serious felony.

We conclude the trial court had sufficient evidence to conclude that the 1982 Texas conviction constituted a valid qualifying prior and a strike. We further find the trial court had no discretion to refuse to impose the mandatory five-year term for the section 667, subdivision (a)(1) prior conviction. (People v. Anderson (1995) 35 Cal.App.4th 587, 41 Cal.Rptr.2d 474.) We will affirm the judgment as modified by imposing the additional term for the serious felony prior. (§ 1260.)

DISCUSSION ³

I Background/Contentions

An enhancement allegation for a foreign prior serious felony conviction (§ 667, subd. (a)(1)) must be pled and proven beyond a reasonable doubt before it may be imposed. (§ 1170.1, subd. (f); People v. Tenner (1993) 6 Cal.4th 559, 566, 24 Cal.Rptr.2d 840, 862 P.2d 840.) The same rule obtains in the three strikes context. (§ 667, subd. (f)(1).)

Under section 667, subdivision (d)(2), dealing with second or third strike sentencing, "[a] prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense that includes all of the elements of the particular felony as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7." (§ 667, subd. (d)(2).) Section 667.5, subdivision (c)(12) and section 1192.7, subdivision (c)(9) both include attempted murder in their definitions of the term violent or serious felony, respectively.

The parties agree that the "least adjudicated elements" test is the appropriate one for determining whether the Texas prior qualifies as a serious felony and a strike under California law. (People v. Crowson (1983) 33 Cal.3d 623, 632-634, 190 Cal.Rptr. 165, 660 P.2d 389; People v. Guerrero (1988) 44 Cal.3d 343, 346-348, 354-355, 243 Cal.Rptr. 688, 748 P.2d 1150; People v. Myers (1993) 5 Cal.4th 1193, 1195, 22 Cal.Rptr.2d 911, 858 P.2d 301.) The Supreme Court explained: "A defendant whose prior conviction was suffered in another jurisdiction is, therefore, subject to the same punishment as a person previously convicted of an offense involving the same conduct in California." (Id. at p. 1201, 22 Cal.Rptr.2d 911, 858 P.2d 301.) Under the current version of the "least adjudicated elements" test, the trier of fact may consider the entire record of the proceedings leading to the prior conviction to determine whether the prior offense "involved conduct which satisfies all of the elements of the comparable California serious felony offense." (Id. at p. 1195, 22 Cal.Rptr.2d 911, 858 P.2d 301.) If not precluded by the rules of evidence or other statutory limitations, the trier of fact may go beyond the least adjudicated elements of the offense and consider evidence found within the entire record of the foreign conviction. (Ibid.)

Here, the trial court was presented with Texas district court minutes which included the judgment imposed upon Purata for the offense of attempted capital murder of a peace officer, with a prior felony conviction. The judgment shows that the jury found Purata guilty as charged in the indictment, and a sentence of 15 years 1 day was imposed in 1982. At Purata's jury trial, he did not contest his identity as the person who suffered this prior felony conviction, even though the name on the judgment is one of his aliases, Alberto Morano.

However, at his trial, Purata brought an in limine motion to strike this prior attempted murder conviction, along with the 1977 robbery conviction. (See fn. 2, ante.) As to the 1982 Texas conviction, Purata argued only that it should be stricken because it occurred prior to the effective date of the three strikes law. ⁴ Based on the Texas judgment, which was the only evidence presented at trial about the 1982 Texas prior, the trial court found the attempted murder conviction was a valid strike prior, noting that it had occurred after a jury trial on the charge and there was no issue as to Purata's identity on that charge. However, as noted above, the trial court declined to use this prior for a prison prior or a serious felony enhancement (as opposed to a strike allegation), based on the trial court's acceptance of Purata's dual use argument.

Purata now argues this showing by the People was insufficient to support the trial court's ruling, because the judgment does not show the underlying facts of the attempted murder offense. On this record, he contends, only a comparison of the Texas and California statutes may be made, resulting in a presumption that the Texas conviction was for the least offense punishable under foreign law. (People v. Guerrero, supra, 44 Cal.3d at pp. 354-355, 243 Cal.Rptr. 688, 748 P.2d 1150.) Purata then argues that since the Texas murder statute defines the offense as intentionally or "knowingly" causing the death of an individual, this "knowingly" element may be interpreted as implied malice, which falls short of California requirements. ⁵

As stated in People v. Ramos (1982) 30 Cal.3d 553, 583, 180 Cal.Rptr. 266, 639 P.2d 908 (reversed on other grounds sub nom. California v. Ramos (1983) 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171) and in People v. Croy (1985) 41 Cal.3d 1, 20, 221 Cal.Rptr. 592, 710 P.2d 392, California requires proof of a specific intent to kill in order to satisfy the elements of attempted murder. (See People v. Martinez (1991) 230 Cal.App.3d 197, 203, 281 Cal.Rptr. 205.) The Texas and California attempt statutes both require specific intent to commit the offense or crime, with acts done toward its commission. (Tex.Pen.Code Ann., § 15.01; § 21a.) ⁶ Purata, however, concludes that under then-effective Texas case law, the Texas attempted capital murder charge could have been shown by an act that demonstrated either express or implied malice, and should thus be found inadequate to serve as a strike. (See Baldwin v. State (Tex.Crim.App.1976) 538 S.W.2d 615, 616.) He adds that no retrial of this prior conviction allegation should be allowed because of double jeopardy prohibitions (citing People v. Jones (1988) 203 Cal.App.3d 456, 460, 249 Cal.Rptr. 840, disapproved in other part in People v. Tenner, supra, 6 Cal.4th at p. 566, fn. 2, 24 Cal.Rptr.2d 840, 862 P.2d 840).

The People respond to this argument by offering additional information about the 1982 Texas conviction via judicial notice, i.e., copies of the indictment, verdict, jury instructions, and an appellate opinion affirming Purata's conviction. (Morano v. State (Tex.Crim.App. 14 Dist.1983) 662 S.W.2d 748; Evid.Code, §§ 452, subd. (d), 459.) Judicial notice was granted by order of November 14, 1995. We also allowed supplemental briefing by the parties to clarify the applicability of certain Texas case law in this area. In their supplemental brief, the People note that case law in effect at the time of Purata's 1982 Texas conviction stated that a specific intent to kill was not required for a conviction of attempted murder and a specific intent to cause serious bodily injury was enough. (Baldwin v. State, supra, 538 S.W.2d at p. 616.) Other cases followed this reasoning. (Garcia v. State (Tex.Crim.App.1976) 541 S.W.2d 428; Teal v. State (Tex.Crim.App.1976) 543 S.W.2d 371.) All this authority was overruled in Flanagan v. State (Tex.Crim.App.1984) 675 S.W.2d 734, 740, where the court clarified that the attempt statute, Texas Penal Code section 15.01, subdivision (a), makes a specific intent to kill a necessary element of attempted murder. In Flanagan, the court noted that the opinions in Baldwin and its progeny had applied their rule to facts which would clearly have supported a finding of the specific intent to kill, and thus labeled the Baldwin statements as obiter dicta. (Flanagan v. State, supra, 675...