People v. LedbetterPeople v. Ledbetter
Tommy Sherrell Ledbetter appeals from the judgment entered after his no contest plea to assault with a deadly weapon. (
Appellant contends that the evidence is insufficient to prove that the two prior Tennessee convictions are serious or violent felony convictions within the meaning of the Three Strikes law and
Rules re Prior Conviction Allegations
“The People must prove all elements of [a prior conviction allegation] beyond a reasonable doubt. [Citation.] Where . . . 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. [Citations.]” (People v. Miles (2008) 43 Cal.4th 1074, 1082.) “The normal rules of hearsay generally apply to evidence admitted as part of the record of conviction to show the conduct underlying the conviction. [Citation.]” (People v. Woodell (1998) 17 Cal.4th 448, 458.) “Thus, a statement in the record of
Prior Tennessee Robbery Conviction
For the prior 1989 Tennessee robbery conviction, the record of conviction includes an indictment, a document signed by appellant and entitled “Petition to Enter Plea of Guilty,” and a judgment. The indictment consists of two counts: the first count alleges robbery and the second count alleges aggravated assault. The robbery count states that appellant and a codefendant assaulted Steven Joiner, put him “in fear and danger of his life, . . . and violently did steal, take and carry away from [his] person and against [his] will” two pizzas of the “value of approximately $20.00.” The judgment states that appellant pleaded guilty to “the offense of simple robbery.”
Appellant argues that, because the judgment does not state that he pleaded guilty to the offense of robbery as charged in the indictment, the allegations in the indictment are inadmissible hearsay. Appellant waived this issue because he failed to raise it in the trial court. (
In any event, the Tennessee judgment alone is sufficient to show that appellant was convicted of a serious or violent felony. The judgment shows that in 1989 he pleaded guilty to robbery. At that time in Tennessee, robbery was defined as “the felonious and forcible taking from the person of another, goods or money of any value, by violence or putting the person in fear.” (
Appellant maintains that the Tennessee robbery conviction does not qualify as a strike because, at the time of his conviction in 1989, California recognized a claim-of-right defense to robbery but Tennessee did not. “[O]ver 100 years ago [the California Legislature] codified in the current robbery statute the common law recognition that a claim-of-right defense can negate the animus furandi element of robbery where the defendant is seeking to regain specific property in which he in good faith believes he has a bona fide claim of ownership or title.” (People v. Tufunga (1999) 21 Cal.4th 935, 950 defense. (See Elliott v. State (1970) 2 Tenn.Crim.App. 418, 454 S.W.2d 187, 188 [“even if the property the defendant alleged was stolen from him had been the very watch and ring later taken [by the defendant] from the person of the victim, the jury would still have been justified in finding the crime of robbery was perpetrated“].)
Appellant contends that, based on the record of conviction, it cannot be determined whether he took the victim‘s two pizzas under a claim of right and, therefore, whether he would have been guilty of robbery pursuant to California law. The contention lacks merit. The indictment alleges that appellant “violently did steal” the two pizzas. Appellant impliedly admitted this allegation when he pleaded guilty. Appellant could not have stolen the two pizzas if he had believed in good faith that the pizzas were his personal property. “[T]o steal means ‘to be a thief; practice theft.’ [Citations.]” (People v. Parson (2008) 44 Cal.4th 332, 352without a good faith claim of right, to permanently deprive the owner of possession. [Citation.]” (People v. Davis (1998) 19 Cal.4th 301, 305, italics added.) “[O]ne cannot feloniously intend to steal one‘s own property.” (People v. Tufunga, supra, 21 Cal.4th at p. 953, fn. 5.)
Prior Tennessee Aggravated Assault Conviction
For the prior Tennessee aggravated assault conviction, the record of conviction includes the indictment (the robbery is count 1 and the aggravated assault is count 2), appellant‘s signed petition to enter a guilty plea, and the judgment, which states that he pleaded guilty to aggravated assault. The People concede that the evidence is insufficient because the record of conviction does not show that appellant personally inflicted great bodily injury upon the victim.
We accept the concession. The aggravated assault charge alleges that appellant and the same codefendant named in the robbery charge “did cause serious bodily injury to Steven Joiner willfully, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.” In California aggravated assault (
The People also concede that the record of conviction is insufficient to prove the requisite intent for aggravated assault under California law because the Tennessee conviction may have been based on merely reckless conduct. At the time of appellant‘s 1989 conviction, under Tennessee law a person could be convicted of aggravated assault if he had “recklessly” caused serious bodily injury “under circumstances manifesting extreme indifference to the value of human life.” (
Remand Vel Non
The People “note[] that . . . appellant‘s Tennessee robbery conviction, along with appellant‘s Oklahoma [conviction for assault and battery with a dangerous weapon], would support his current three strike sentence.” Nevertheless, as to the Tennessee aggravated assault conviction, the People request that “the matter be remanded to the trial court for the limited purpose of determining whether appellant suffered a prior foreign conviction equivalent to a California ‘strike’ offense.” The People argue that “where a reviewing court finds that insufficient evidence supports the ‘strike’ enhancement, the case should be remanded for retrial on the prior ‘strike’
“[R]etrial of a strike allegation is permissible where [as here] a trier of fact finds the allegation to be true, but an appellate court reverses that finding for insufficient evidence.” (People v. Barragan (2004) 32 Cal.4th 236, 239section 667, subdivision (a), an additional five years is mandated for each of these prior serious felony convictions. The trial court stayed sentence on the section 667, subdivision (a) prior serious felony Tennessee aggravated assault conviction. Thus, the court‘s erroneous true findings on this conviction did not add one day to appellant‘s sentence. The People do not explain why they want an opportunity to retry the strike allegation when that allegation cannot affect the length of appellant‘s sentence.
It would therefore be an idle act and “a waste of ever-more-scarce judicial resources” to remand the matter for the purpose of retrying the Tennessee aggravated assault strike allegation. (In re Z.N. (2009) 181 Cal.App.4th 282, 300Civ. Code, § 3532.)
Our decision not to remand the matter is consistent with People v. Alford (2010) 180 Cal.App.4th 1463. There the defendant requested that the matter be remanded to the trial court for a new sentencing hearing to remedy a section 654 problem. The appellate court denied the request: “[Remand for this purpose] would mean pulling
Section 1260 provides: “The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.” The power to order remand “for such further proceedings as may be just under the circumstances,” in our view, permits us to not remand to secure the same goal, i.e., justice under the circumstances.
Here, we are exercising our authority to preclude retrial because “[t]he futility and expense” of remand for the purpose of retrying the Tennessee aggravated assault strike allegation “militates against it.” (People v. Alford, supra, 180 Cal.App.4th at p. 1473; see also People v. Moore (2006) 39 Cal.4th 168, 176 [“Section 1260 evinces a ‘legislative concern with unnecessary retrials where something less drastic will do’ “].)
Disposition
The finding that appellant‘s 1989 Tennessee aggravated assault conviction constitutes a serious or violent felony conviction within the meaning of the Three Strikes law and
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P.J.
PERREN, J.
Jacquelyn H. Duffy, Judge
Superior Court County of San Luis Obispo
Mark R. Feeser, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, Seth P. McCutcheon, Deputy Attorney General, for Plaintiff and Respondent.