*1 S130080. Dec. [No. 2006.] PEOPLE,
THE Plaintiff and Appellant, TRUJILLO, ALEX Defendant
MANUEL and Respondent.
Counsel Anderson, General, Attorney Chief Assistant Robert R. Bill Lockyer, Attorney Hamanaka, Attorneys Assistant General, Pamela C. A. Engler Gerald Chacón, Jorstad, Daniels and Lawrence M. General, Kristofer René A. General; McCarroll, W. District Kennedy, George Attorneys B. Ryan Deputy Kimball, Plaintiff and Attorney, District and Neal J. Attorney, Deputy Appellant. Court, Kresser, for Defendant under Supreme A. appointment
Michael and Respondent.
Opinion convicted of a MORENO, J. a trial at which defendant was Following jury had an that defendant suffered court found felony, law of the “Three Strikes” meaning conviction for a violent within Asserting be a and sentenced defendant to accordingly. “not to strike” prison that conviction was not that the trial court erred in finding alleged prior strike, subdivi Penal Code section relying People appeal, upon order (a),1 setting sion from appeal by permits “[a]n (id., (a)(1)), order all or of the indictment” subd. any aside portion “[a]n any or otherwise all or judgment dismissing terminating portion (id., (a)(8)), action” subd. and from of an unlawful sen imposition “[t]he (id., (a)(10)). tence” subd. The Court of ruled that the could Appeal (a)(10), under subdivision reversed the trial court’s order section appeal strike, and remanded the case to that conviction was not alleged prior court for a retrial of the conviction allegation. trial that the from the We with Court of agree People may appeal Appeal (a)(10) on the judgment ground section subdivision pursuant defendant’s sentence is unlawful because the trial court erred in ruling not, and conviction was not a strike. we need alleged prior Accordingly, not, (a)(1) do address whether this also is authorized subdivision appeal however, (a)(8) with the Court of section 1238. We disagree, conclusion that the trial court erred in ruling alleged Appeal’s Thus, was not strike. we affirm in reverse part of the Court of judgment Appeal.
Facts 7, 2002, An information filed on March defendant Manuel charging was 211, Alex with in the second in violation of section Trujillo robbery degree and assault means of force to in by great bodily injury likely produce 245, (a)(1). violation of section subdivision The information further alleged that defendant had inflicted great bodily injury committing personally 12022.7, (a). crimes in section The informa- charged violation of subdivision convictions, tion that defendant had suffered three two of which alleged prior were to be “strike” convictions for serious or violent felonies alleged prior 667, (§ (b)-(i)). within the the Three law subds. Strikes meaning trial, of the truth of the Prior to the court bifurcated determination prior conviction from the determination of defendant’s allegations guilt crimes, and defendant later his to a determination charged right jury waived undesignated statutory references are to the Penal Code. Further The found jury of the truth of the conviction allegations. subsequently prior great bodily defendant of assault means of force guilty likely produce not true the and not The found robbery. jury allegation injury guilty inflicted had great bodily injury. defendant court on the conviction The allegations.
The court held a bench trial prior defendant, evidence, admitted certified without objection by copies into inflicting defendant had been convicted of records showing previously 273.5, (a) in and of in violation of section subdivision corporal injury (a)(1) subdivision in violation of section deadly assault with weapon Youth for Authority receiving and had been committed to the California in violation of section stolen 1987. property convictions for inflicting The that defendant’s argued prosecutor both serious felonies with a were deadly weapon assault corporal injury 1192.7, under the of section and thus constituted strikes within meaning that neither offense was acknowledged Three Strikes law. The prosecutor 1192.7, (c) but in subdivision of section felony listed as serious specifically as a (c)(23), which defines that both offenses came within subdivision argued a danger- in which the defendant used personally serious felony, “any ous or deadly weapon.” that defendant’s conviction for assault
Defense counsel conceded in that “is a strike” because the information clearly with a deadly weapon “with a deadly case that defendant committed assault weapon, alleged however, wit, over whether disagreed, a knife.” parties was a strike. inflicting injury corporal The documents submitted prove was filed on August reflected that injury felony complaint inflicting corporal a further with inflicting injury, defendant with corporal charging (b) that defendant used personally under section A second commission of the offense. dangerous deadly weapon wit, a “two with assault with a deadly weapon, count charged *6 5, 1991, reflects of on September knife.” A reporter’s transcript proceedings to a to bargain inflicting corporal that defendant guilty plea pled pursuant of in years adding: to a sentence two prison, The court injury. agreed impose a deadly count the assault with has to dismiss agreed “The D.A.’s office a knife in the that used allegation you also to strike agreed weapon. They’ve to sentenc- A report prepared prior commission of the felony.” the 16, 1991, and interviewed on September reflects that defendant was ing “I an argument, stating: a knife during the victim with stabbing admitted the knife.” her with stuck inflicting corporal the for that conviction argued
The prior prosecutor recounted in defendant’s statement a serious based felony upon was injury a knife. Defense counsel that had used the he personally probation report because, of felony regardless not a serious conviction was argued prior 273.5, and “was of merely defendant convicted the probation report, [section] a serious or it a strike or into would have elevated into the use that allegation he said in I think whatever at the time was stricken. Therefore violent crime Court can look something not is not relevant and the probation the conviction itself.” because it undermines fact, did, three suffer all prior court “that the defendant The trial found Information,” and found that in the alleged convictions that are strike, a with a was deadly weapon conviction for assault defendant’s prior conviction for inflict- defense that defendant’s agreed prior but with counsel that defendant had allegation was not a strike because the corporal ing injury in the commission dangerous used a deadly weapon personally prior offense been The court observed prosecutor had stricken. the knife would not understanding allegation case “settled case with the that.” trial Accordingly, be used. It went The defendant relied on away. “is inflicting corporal injury court found that defendant’s conviction for prior that had found true the defendant allegation not strike.” The court further inflicting his served a term based prior prison upon 667.5, (b). meaning within the of section subdivision corporal injury 7, 2003, years On was sentenced to term seven March means of force of the midterm of three for assault consisting years prison, strike,” one “doubled because of likely great bodily injury plus produce for The notice of on April term. filed a year People appeal prior prison 2003. ruled that the could to section appeal pursuant Court Appeal (a)(10), imposi- which permits appeal “[t]he sentence,” ruling trial court erred in that
tion an unlawful held was not strike. inflicting injury corporal striking concluded that the The Court Appeal as dangerous weapon defendant had used personally deadly underlying did bar the use of the bargain proceeding review. granted We proceedings. facts of the conviction in present
Discussion to Appeal
People’s Right as right except a criminal case has no appeal “The prosecution has determined that except ‘The Legislature statute. provided [Citation.] *7 under certain limited circumstances the have of shall no People right appeal in criminal cases. . . . The restriction on the right People’s [Citations.] [f] ... is a substantive on of appeal limitation review trial court determinations in criminal trials.’ at the the review ‘Appellate request People [Citation.] accused, necessarily substantial burdens on imposes an and the extent which such burdens should be to review claimed imposed errors involves a delicate of the balancing considerations harassment competing preventing the accused as against correcting possible errors.’ Courts must [Citation.] respect limits review imposed by Legislature ‘although People may suffer a Williams thereby wrong without remedy.’ [Citation.]” 35 Cal.4th 1239].) 822-823 110 P.3d Cal.Rptr.3d
Section 1238 “governs the from People’s orders or appeals judgments of the (People Douglas courts.”2 superior 20 Cal.4th 89-90 [82 151].) P.2d (a)(10) Subdivision of section 1238 provides may sentence,” from People appeal an unlawful imposition “[t]he and defines an “unlawful sentence” as “the of a sentence not imposition authorized law or the by of a sentence based an imposition unlawful upon order of the court which or strikes otherwise modifies the effect of an enhancement or conviction.”
The assert the sentence in case is unlawful as present defined in (a)(10) section it because is “based an upon unlawful order of court . . . modifies effect . . . a[] conviction.” that the sentence Specifically, argue is based upon trial court’s erroneous order that allegedly
inflicting is not a corporal injury strike because the in that case that defendant had used a deadly and personally dangerous weapon commission of the offense had been stricken of a as This bargain. order” allegedly “unlawful modified the effect of defendant’s inflicting injury ruling that it not a serious corporal upon spouse by felony. “(a) Section provides, pertinent An be part: appeal people taken any following: of the “(1) indictment, setting information, any portion An order aside complaint. all or of the or [¶] [¶]... “(8) judgment dismissing terminating portion An order or or any otherwise all or of the including judgment finding action an order guilty such or after a verdict or or an order or
judgment placed jeopardy entered before defendant has been or where has jeopardy. . . waived . [¶] [¶] “(10) sentence, of an imposition suspends unlawful whether or not the court execution of the sentence .... As used this ‘unlawful paragraph, sentence’ means the imposition of a upon sentence authorized law or the based imposition sentence unlawful order court or which strikes otherwise modifies the effect enhancement of an prior conviction.”
173 convic two prior that defendant had suffered alleged The prosecutor Section of 1192.7. the section meaning serious felonies within tions that were law, who is a defendant the Strikes that (e)(2)(A), subd. Three requires two more convictions and has suffered or felony prior convicted term life to an indeterminate of imprisonment. serious felonies be sentenced court, is inflicting corporal injury in the trial As the acknowledged prosecutor 1192.7, but the one the listed in section prosecutor not of offenses specifically 1192.7, the which includes within (c)(23) of section relied subdivision upon the defendant in which “any personally of a serious felony definition a used or dangerous deadly weapon.” conviction for inflicting trial court ruled that defendant’s prior strike, that in whether not a concluding was
corporal injury in a deadly committing defendant had used or personally dangerous weapon conviction, in it not defendant’s statement reflected the could consider prior victim, the allegation the that he had stabbed the because probation report commit used a or dangerous deadly weapon defendant had personally a If this bargain. ruling had been stricken as of ting part offense prior . modifies the effect of is “an unlawful order . . which strikes otherwise (a)(10) . . of section meaning . conviction” within of subdivision prior [a] is, resulting as the contend it then defendant’s sentence People 1238 and the (a)(10) unlawful within the of subdivision section meaning Douglas, v. Cal.4th at People As we observed in People may appeal. 94-95, (a)(10) language People pages plain permits orders,” and “the underlying “sentences based on unlawful appeal assertedly v. Henderson (See People be may orders reviewed on underlying appeal.” 461].) (1987) Accordingly, 1237-38 195 Cal.App.3d case of the sentence in order may People present appeal imposition the trial court’s that defendant’s challenge ruling prior is not strike. inflicting corporal injury that a argues finding
Defendant not from People may appeal true, his the circumstances conviction is not but misconstrues argument this did not an order finding case. The People appeal Rather, from an appealed conviction true. People properly an unlawful that a ruling unlawful sentence based allegedly allegedly upon from an allegedly conviction was not strike. As such appeal sentence, the trial court’s underly- unlawful the Court review Appeal on the ing allegation. ruling court, this we should hold that for the first time in argues,
Defendant this case “would raise serious sentence in permitting appeal would that such a holding constitutional doubts.” Defendant acknowledges Monge 16 Cal.4th overturn our decision effectively I) (Monge P.2d disregard decision Monge United States Court Supreme 524 U.S. California *9 (Monge II). We decline to do L.Ed.2d 118 S.Ct. so. I, Monge
In the Court of had reversed the trial court’s true Appeal finding on a serious prior and ruled that felony allegation, the retrying allegation would the subject to double We to granted review decide jeopardy. whether the state federal double clauses to a jeopardy “apply proceeding, case, in a to determine the noncapital truth serious prior I, (Monge allegation.” (lead Chin, J.) 16 Cal.4th of The opn. I opinion Monge stated that lead in the state and federal prohibitions against double do not in jeopardy apply proceedings cases to determine noncapital (Id. the truth of allegations. conviction at prior Justice Brown p. result, concurred in this creating (conc. at majority. of opn. Brown, J.).) II, Monge and,
The United States Court certiorari Supreme granted affirmed the that “the judgment, Double does not holding Jeopardy Clause retrial on a preclude conviction the prior allegation in noncapital sentencing II, context.” (Monge 524 U.S. 734.) The high court observed: “Where noncapital sentencing contain trial-like that proceedings protections, command, is a matter legislative not grace, constitutional Many States have chosen to implement procedural safeguards defendants who protect face dramatic their increases as a sentences result of recidivism so, We do enhancements. not that believe because the States have done we Indeed, are to extend the compelled double bar. were jeopardy we apply here, double we create disincentives that jeopardy might would diminish (Ibid.) to, these are not important procedural protections.” liberty We nor to, are we inclined the disregard holding the United State Court Supreme in Monge II. Nor are we Monge I’s that we should reconsider persuaded conclusion the that California Constitution’s double clause does not jeopardy retrial on a preclude conviction prior allegation in sentencing noncapital context. we with the Court
Accordingly, agree that Appeal People may of the sentence under appeal imposition (a)(10). section subdivision The contend that the sentence in the case is unlawful because present it is based trial court’s erroneous upon allegedly ruling striking case that defendant had used a dangerous personally or deadly the trial court in the case weapon precluded relying present Thus, defendant’s admission that he stabbed had the victim. the People may under section on the appeal (a)(10) ground sentence was unlawful. resulting a Strike Prior WasNot Conviction could concluded that correctly the Court of
Although Appeal sentence, the trial court’s it erred in reversing imposition appeal not was inflicting injury corporal that defendant’s ruling case submitted strike. The prosecutor present that he had stabbed victim defendant’s admission which included report, ruled, however, that it could consider trial court with a knife. The admission, that defendant had personally the allegation because been offense had committing used a dangerous deadly weapon case had been reasoning stricken as plea bargain, *10 be It knife would not used. allegation settled “with the understanding reversed, on that.” The Court of went defendant relied away. Appeal that, in struck that in case reasoning bargain prior part, the plea did not “bar deadly that defendant had used a weapon personally a in sentencing the use of the facts the stricken enhancement underlying “the court’s refusal to and concluded that trial conviction” subsequent defendant’s statement in the constituted probation report] consider [reflected a full and fair to error and judicial opportunity deprived prosecution offense a ‘serious’ We we prior felony.” disagree. Although was prove court, we different than that utilized trial conclude reasoning by employ to attributed to correctly that the trial court declined consider statement in the whether defendant in a had suffered for a serious as defined section felony prior 1192.7, (c)(23). subdivision above, the that con
As noted information alleged prior 273.5, viction for in violation of section inflicting corporal injury (a) a the Three Strikes meaning subdivision was serious within the felony 667, which, an (§ mandates (b)-(i)), law subds. other among provisions, one convictions for felony enhanced sentence if a defendant has or more prior 1192.7, (c). a The list of felony serious as defined in section subdivision 1192.7, however, section is not limited “to serious felonies in specific, 826, Jackson 37 Cal.3d (People discrete offenses.” v. 623, 1192.7, instance, 736].) P.2d For section subdivi Cal.Rptr. here, a defines as serious (c)(23), sion which the relied upon prosecution dangerous the defendant used a “any felony felony personally not to referring We have construed such “as deadly weapon.” provisions therein, offenses, criminal but to the criminal conduct described specific that conduct.” whenever the prosecution pleads proves applicable 826, Jackson, 832.) v. 37 Cal.3d (People supra, Jackson, he into under which bargain In the defendant entered a plea At burglary. that residential admitted he had suffered time, 1192.7, former section of a defined burglary Jackson, 826, 832; residence as a serious v. (People felony. 37 Cal.3d 7, 8, voters, as Prop. (June 1982).) Elec. approved Primary § We gave effect to the defendant’s that admission his prior degree second burglary residence,” that, conviction “involved burglary of a but warned in general, “proof of residential character of the burglary encounters obstacles.” Jackson, 37 Cal.3d fn. omitted.) We observed: “The record of a conviction for second would not degree burglary entry prove residence, into a even if the included pleadings superfluous allegations to Moreover, effect. could not to People go [Citation.] behind record a fact which was not prove then element of the A crime. [Citations.] contrary holding, permitting litigate circumstances crime committed years would raise past, problems serious akin double denial of trial.” jeopardy speedy In (1986) 42 Cal.3d P.2d Alfaro
1154], we reaffirmed our Jackson that “in statement proving , conviction was a ‘serious . . . felony’ was limited to matters proof established necessarily conviction.” The had prosecution sought that the defendant prove had suffered a conviction in 1974 Alfaro for the serious residential burglary by introducing copy *11 “ conviction, in information the which that ‘en- prior alleged the defendant ” tered the house of Gilbert’ and a minute Shelby order the showing “ ” defendant had to the ‘as forth in pled guilty charge set the Information.’ (Id. 631.) at We held that “the in pp. judgment the 1974 burglary did not proceeding establish that defendant a entered residence. While the so information such was not alleged, an element of crime. entry the Defend- ant’s plea constituted ‘a of guilty judicial every admission element of the [citation], that; offense charged’ but it did admit other in only allegations the 636.) at pleadings. We observed: “The virtue this p. of [Citation.]” is that the analysis of conviction limited proof prior to matters which fall within the doctrine of collateral and thus be estoppel cannot controverted. Proof is and simple conclusive. The . . view .—that residential contrary entry is conduct which can be like other of proved any controverted question fact—creates obvious difficulties. The could then introduce docu- prosecution and testimonial the mentary evidence to show that a burglary involved prior residence; defendant could introduce evidence the argue or that contrary prosecution’s evidence does not the a beyond reasonable doubt. prove point The net result would resemble retrial of the (Id. at original burglary charge.” 634-635.) pp.
The in that in holding the truth of an that a determining Alfaro defendant had been convicted of a serious the trier fact “was limited to matters established the necessarily conviction” was short lived. prior (People Alfaro, v. 42 supra, 629.) Cal.3d at We little p. reconsidered issue
177 343 v. Guerrero Cal.3d in People than a later year more in and held Alfaro, 1150], our holding overruled 748 P.2d of conviction.” entire record “the fact look may instead that trier of Guerrero, 345.) v. at Cal.3d (People p. had suffered v. Guerrero that the defendant
It in alleged was a felony. which is serious burglary, for residential two convictions court, to the which was tried allegations truth of the conviction conviction, an accusatory of which included reviewed “the record each or nolo and defendant’s of guilty residential charging burglary pleading Guerrero, true. and found the allegations contendere” 345.) reviewing at In the trial court “acted holding properly” Cal.3d p. the defendant of which to determine the burglary the accusatory pleading thus we held felony, was and a serious burglary was convicted a residential trier of fact truth determining allegation, that in of (id. at to the entire record of conviction” “look beyond judgment observed, fair, (id. no 355). we “but 356) at This rule was p. p. further" the circum “it bars the prosecution relitigating because effectively defendant years ago thereby threatening stances a crime committed (Ibid.) We akin to denial trial.” with harm double jeopardy speedy address, however, as what items in declined to “such questions expressly (Id. what record conviction are admissible purpose.” Guerrero, therefore, the trier fact fn. We did not decide whether in a could statements attributed the defendant consider was convicted. the nature of crime Reed 914 P.2d In Cal.4th 184], is a hearing we held that transcript reporter’s preliminary of the rule announced meaning the record of conviction within *12 be Guerrero. We that the term “record of conviction” could “used recognized [citation], or narrowly, as to the record on more technically, equivalent appeal the facts of the reliably reflecting as to those record documents referring only held 223.) at We that offense for which the defendant was convicted.” p. the a “falls within even narrower hearing a of reporter’s transcript preliminary the during afforded defendant definition because the procedural protections the evidence. Those reliability tend to ensure of such hearing preliminary and the and cross-examine witnesses include the confront right protections oath, the accuracy those under with testify coupled witnesses requirement afforded the court verbatim by reporter’s reporting proceedings.” (Ibid.) to decide in Reed whether from a excerpt
We declined expressly conviction, “Whether stating: the record of officer’s is of part probation report of falls the more narrow definition officer’s also within the probation report 178 Reed,
record of conviction v. a closer question.” (People supra, presents 217, 230.) Cal.4th declined that We to reach because we question concluded that the the officer’s in excerpt probation that case was report multiple that did not within a hearsay fall the recognized rule. exception hearsay (Ibid.) v. Monreal
The Court of in Appeal Cal.App.4th in Reed reached the issue we left held that a open conviction, officer’s is of the record probation and a report part admission reflected in such be considered report may however, nature of a conviction. We disagree, with holding Monreal. Monreal
The defendant in had suffered assault for with a deadly or of means force weapon by likely produce great bodily injury violation of (a)(1). section subdivision The sought to prosecution prove this conviction was for a serious because the defendant used a “personally dangerous within deadly weapon” meaning 1192.7, section (c)(23). subdivision the abstract of People proffered which that the judgment, reflected defendant had been convicted after a jury Monreal, trial of “assault with a knife.” (People Cal.App.4th 674.) knife, In order to establish that the had defendant used the personally as 1192.7, (c)(23), section required also produced probation stated that defendant report, told officer that he had stabbed the victim awith knife. in Monreal
The Court of Appeal concluded statement was admis even sible it was double though because it fell within the hearsay exceptions Code, for an (Evid. 1220) admission party a record aby § public Code, (Evid. 1280). The court in Monreal employee then considered the § in Reed whether the issue we left open probation officer’s report part conviction,” the “record of in Reed decision had noting our “suggested conviction,’ two ‘record possible either ‘the record meanings or more .. narrowly,. . . . those record appeal... only documents re reliably the facts flecting of the offense for which ....’” was convicted Monreal, in Monreal Cal.4th The court concluded was report record of the conviction under part either definition. The certainly was record on Monreal the court was concluded appeal, sufficiently *13 reliable, even it though recognized “that procedural protections aof reliability hearing are not to support preliminary transcript applicable officer’s of a defendant’s probation report admissions.” p. The Monreal thus decision concluded that trial court considered properly the defendant’s statement officer’s in that probation concluding report
179 he because felony person for a serious conviction was 72 Mobley (1999) (See also dangerous weapon. used or ally deadly Monreal’s 761, and “reasoning [finding Cal.Rptr.2d Cal.App.4th [85 holdings dispositive”].) Monreal, in but than the court
We reach a different conclusion decision; a defendant’s we conclude that in that reasons not considered statements, has been guilty accepted, made after a defendant’s plea has been after the guilty plea in a officer’s prepared appear conviction, such because of the record of the prior are not part accepted defendant for which the not the facts of the offense statements do “reflecto Reed, 223.) We recognized Cal.4th at (People was convicted.” 899, 133 P.3d v. McGee 38 Cal.4th a serious 1054], felony whether a conviction is for that in determining ” “ that “the relevant conviction is at issue.’ We explained ‘the nature of aas serious qualifies whether a deciding particular prior inquiry to an examination of for California is limited sentencing purposes the nature or basis to determine record of the criminal proceeding (Ibid., crime which the was convicted.” added.) italics defendant A the defendant recounted in a postconviction probation statement by the crime of which reflect the nature of necessarily does case, In the for example, prosecution the defendant was convicted. present instead, and, into that defendant a knife entered did not used attempt prove that defendant used a in which it dismissed the bargain plea with a deadly and committed assault deadly dangerous weapon. weapon thus have and testify, could not compelled prosecution admission that he stabbed could not have used defendant’s subsequent defendant could victim to convict him. Once the court his accepted plea, fear of admit to the officer stabbed the victim without having of the double because he was clothed with the protection jeopardy prosecution, (Texas v. Cobb for the same offense. clause from successive prosecution 1335].) Defendant’s L.Ed.2d 121 S.Ct. (2001) 532 U.S. 173 [149 therefore, does not recounted in the officer’s report, admission be which he was convicted cannot the nature of the crime of describe for a serious felony. conviction was used prove that information that concurring dissenting justices We with the agree be of guilty may attention after it has accepted plea comes to the court’s matters as whether to withdraw the trial court in such deciding considered by v. Johnson 10 Cal.3d its prior approval course, and, 604]) P.2d dissenting concurring But we with disagree sentence. appropriate admission to his means that defendant’s this logic justices’ leap *14 180 victim, after officer in the case that he stabbed the made
probation prior trial court had to a guilty bargain dismissing his accepted plea pursuant victim, all he of the had stabbed facts allegations “reflects] Reed, offense for which the defendant was convicted.” v. 13 (People supra, 217, 223.) Cal.4th
As the “a defend concurring dissenting justices acknowledge, a ant’s on which a sentence has not been constitutes guilty yet imposed, plea, (Conc. an & enhanced sentence.” dis. purposes imposing Baxter, J., 184, 878, (2004) v.Laino 32 Cal.4th citing opn. post, People (1990) 87 P.3d & v. Rhoads 221 People 882 Cal.Rptr.3d [11 266].) Defendant’s admission in the Cal.App.3d present [270 case, therefore, was made after defendant was convicted and does not reflect the facts which he was convicted. upon of a reflected in a officer’s use defendant’s statement
Barring probation that an conviction was for a serious alleged report prove consistent with our rule in v. Guerrero that in the nature conviction, aof the court look to the entire record of the may conviction, Guerrero, 343, 355.) “but 44 Cal.3d no (People further.” The reason for this was to from “effectively limitation prosecution bar[] of a crime committed years ago thereby circumstances relitigating the defendant harm akin to double and denial of with threatening jeopardy (Ibid.) made in trial.” defendant’s statement speedy Permitting postcon- him to nature viction officer’s to be used establish the report against akin of the conviction would similar harm problems, creating present double circumstances jeopardy forcing relitigate the crime.
A defendant’s statements in the officer’s differ in this which is hearing, respect reporter’s transcript preliminary Reed, admissible to conviction. (People the nature prove 223-229; 13 Cal.4th at v. Blackburn pp. Cal.App.4th 134].) of a contains hearing Cal.Rptr.2d transcript preliminary evidence that was admitted the defendant and was available to the against to the conviction. The hearing, prosecution prior transcript preliminary therefore, the conviction. sheds basis for light
A also differ defendant’s statements decision, court which can be relied to determine upon from appellate because it disclose the facts which the upon nature of based. v. Woodell 17 Cal.4th conviction was 85].) “that P.2d We held in Woodell appellate opinions, the record of conviction that the trier of fact may are general,
181 under the sentencing a conviction qualifies whether determining consider warned, however, and to what (Ibid.) at We scheme issue.” “[w]hether decided on the facts in a case must be is specific extent opinion probative (Ibid.)3 of that case.” defend declined to consider correctly the trial court
Accordingly, con of the prior recounted in the officer’s report ant’s statement viction, serious conviction was not a and determined that the correctly prior (§ (b)-(i)). the Three Strikes law subds. within the felony meaning
Disposition to the extent that it of the Court of is reversed Appeal judgment “ in Santa Clara County
reversed the ‘not true’ on the conviction finding prior judgment Court case No. In all other respects, 149886.” Superior Court of is affirmed. Appeal J., J., Kennard, J., concurred. C.
George, Werdegar, BAXTER, J., in the hold- majority’s I concur Concurring Dissenting. that the from the under section ing judgment People may appeal refer- (a)(10) (all statutory of the Penal Code further unlabeled code). ences are to this dissent, however, determination that the trial court
I from the majority’s officer’s declined to consider defendant’s admission correctly that, “I stuck her with the knife.” to the I conclude Contrary majority, that a that a of the “record of conviction” whether a defendant’s trial court consider may lawfully the “Three was a or within the meaning serious violent (§ (b)-(i)). law Strikes” subds.
I. issue, recent I start our most reviewing To this properly analyze 217 In Reed 13 Cal.4th decisions on matter. v. People had not (Reed), P.2d we noted decisions 914 definitive guidance defined the “record of conviction” so as to provide phrase determine the substance of what documents could be considered to regarding conviction sentence conviction and the applicability did, however, Reed phrase enhancement. explain Monreal, Mobley, Cal.App.4th The decisions in contrary they opinion. the extent are to this Cal.App.4th disapproved 761 are [citation], be used either as record “technically, equivalent appeal more as to those record documents narrowly, referring only reliably reflecting (Ibid.) the facts of offense for which defendant was convicted.” control, Reed held that a Without definition deciding ought prelimi falls within “even the narrower definition” of record of nary hearing transcript conviction because the afforded the defendant during procedural protections *16 (Ibid.) such a “tend to ensure the of such evidence.” With hearing reliability to another of evidence offered in that case—certain out-of- category respect court witness statements contained in a probation report—Reed declined to decide whether the itself was of the record of report conviction and instead found the statements in the should have been (Id. 230.) excluded as inadmissible at hearsay. p. issue,
In of the statements at of rejecting admissibility consisting officer’s narration of facts drawn from sources other than the probation defendant, Reed of statement involved here: “The distinguished type does not the declarant or declarants from whose report fragment identify statements the officer drew his factual There is no summary. evidence the was based on own admissions to the excerpt officer, Code, (Evid. so as to within the admissions. hearsay exception party fall for 233, 1220; see Garcia 216 237 People Cal.App.3d Cal.Rptr. § [264 admission contained in v. Abarca probation report]; 662] [defendant’s [(1991) 233 at 1351 Cal.App.3d p. [285 [defendant’s 213]] admission contained in of Nor does hearing].) any transcript change-of-plea (Reed, 13 other to the rule exception hearsay appear applicable.” added.) Cal.4th at italics p. P.2d
In
v. Woodell
Earlier this we reiterated “the relevant year, inquiry a serious for California sentenc felony as particular prior qualifies the record criminal is limited to an examination ing purposes of of crime to determine the nature or basis which proceeding (2006) 38 Cal.4th was convicted.” v. McGee McGee, (McGee), added.) 133 P.3d italics In we held no federal constitutional to have a decide whether right jury a defendant has conviction constitutes a out-of-state qualifying purposes 687.) California statute. sentencing p. can be that a officer’s report, properly
There no dispute meets the technical in the record on in a criminal belongs appeal proceeding, (Reed, definition of “record of conviction” to which Reed referred. below, also falls within Cal.4th at For the reasons such p. Reed’s narrower the facts of “reliably term because it concept reflect[s] (ibid.) convicted” and additionally the offense for which defendant was under McGee as a document included in the record of properly qualifies can be the “nature or basis of the crime” from which prior proceeding determined (McGee, supra, 691). Cal.4th at relevant to a number of officers’ are
Significantly, reports highly and correctional determinations defendants con judicial regarding important victed of crimes. Such “are used reports by judges of Corrections sentence appropriate length prison Department and Rehabilitation ... deciding facility upon type program *17 defendant, which to and are also used in whether place deciding proba Court, (Cal. 4.411(d) (all tion is rule Rules of rule further appropriate.” rules); (b), references are to also refer these see subds. (g).) Judges § to such whether and to what extent restitution fines and reports deciding (Rule costs should be 4.411.5(a)(11); assessed defendant. against § (b)(2)(C), subds. (g).) serve, the
Given these the California Rules of important purposes reports included, Court a detailed list of the information that must be provide information and circumstances of the including facts pertaining “[t]he (Rule 4.411.5(a)(2).) crime.” the shall include Additionally, “[a]ny reports officer, statement made the by to the or a probation summary thereof, including account the circumstances the crime.” defendant’s (Rule 4.411.5(a)(4), added.) italics To promote reliability transparency fact-gathering rules mandate that source of process, explicitly “[t]he all information shall be stated. who has furnished information Any person included in the shall be identified name or official unless a report capacity (Rule 4.411.5(c); reason is for not given disclosing see person’s identity.” 4.411.5(a)(2).) also rule At their defendants have the sentencing hearings, and to opportunity challenge correct accuracy any misstatements, v. Monreal admissions attributed to them. including Garcia, 737]; supra, Cal.App.4th 237.) at Cal.App.3d p.
Thus, a
officer’s
its recitation of
facts
report—with
circumstances of the
crime and
inclusion of
admissions
any
defendant’s
its
made
serves to inform official decisions
defendant—properly
regarding
fines,
and reha-
restitution
correctional
appropriate punishment,
facility,
the nature
crime and
bilitative
for the defendant based on
of his
programs
use,
other factors. In
of this
light
sanctioned
it makes no sense whatsoever to
considered,
find that
the same
subsequent
cannot be
criminal
in a
as a
proceeding,
document
the facts of
“reliably
the [prior]
reflects]
(Reed,
offense for which the
defendant was convicted”
I have no with the that a quarrel proposition guilty plea, which a sentence has not yet been constitutes a imposed, People v. Rhoads purposes (See enhanced sentence. imposing 56, 58-60 Cal.App.3d a Health and [addressing Safety *18 v. Laino enhancement]; 878, Code (2004) see also 32 Cal.4th 895-898 723, 87 P.3d of Cal.Rptr.3d to a domestic plea guilty [11 27] [defendant’s violence even when followed a felony, dismissal of the defendant’s case after his successful of a state diversion constitutes a completion program, conviction under the Three law].) Strikes
But the here is not whether a question defendant’s guilty standing plea, alone, has legal significance as a Three purposes Rather, law. Strikes the issue is whether a trial court assess the serious or may violent nature of the offense for which the defendant was convicted based on the defendant’s own in an admissions official that is after his report prepared of but before a plea guilty of on that entry judgment plea.
A trial court that or initially accepts approves negotiated to an guilty offense retains broad discretion at the plea to sentencing phase withdraw that effect as a conviction.1 prior approval negate plea’s 1 A trial withdrawal approval permitted, example, court’s “is for in those where instances where, [citation], fully the court becomes more informed about case or after further consideration, bargain society. the court concludes is not in the best interests of (1997) (People Superior (Gifford) Cal.App.4th Court [Citation.]” [62 519 P.2d v. Johnson Cal.Rptr. 10 Cal.3d
(People [112 issue, at whether the offense concerning evidence 604].) In this regard, trial to the otherwise presented officer’s contained in a report probation relevant to be may highly the sentencing hearing, court the time of instance, For it conviction. stand as a valid the defendant’s may whether plea after officer’s report reading that a trial court’s has been held to a sufficient contributed negotiated plea guilty of a defendant’s entry denial of the the trial court’s factual basis for plea supported v. Watts (1977) 67 (People withdraw his defendant’s motion to plea. grand jury finding 181-182 Cal.App.3d [also vein, trial when basis].) factual In similar a sufficient transcripts provided but appellate a factual basis for a negotiated plea, counsel to stipulates basis, court claims factual the appellate lacks an adequate counsel plea a factual basis for to see if it establishes review the may probation report 1557, 1564—1565 Mickens 38 Cal.App.4th plea. in a on facts disclosed 633].) Because a court may rely the defendant’s validating officer’s for the critical purpose report conviction, able to on the rely that a court should be it follows resulting admission of facts in such defendant’s uncontradicted offense. basis of the additional the nature or determining pleaded purpose Woodell, view is at odds with Notably, majority’s cramped are in general, held that “appellate opinions, Cal.4th specifically the trier of fact consider of the record of conviction that part at sentencing under the scheme whether a conviction qualifies Woodell (Id. distinguish at Although majority attempts issue.” here, that the record leading Woodell the notion rejected situation after a a document could not include judgment prepared imposition 454-455.) decision—which Today’s conviction and sentencing. pp. document as a categorizes “postconviction” after the defendant it is of the record of conviction because prepared not concluded—would his trial have even guilty, though proceedings pleads convic that the record of of Woodell’s holding seem require disapproval *19 written and other documents tion include a may judicial opinion appellate final. but becomes judgment the trial proceedings before after in this to aid the defendant rule Finally, although majority’s happens case, unduly the rule’s effect of defendants suffer from other particular discretion, prior proceeding 220].) the trial court in the Consistent with this broad Cal.Rptr.2d charging with a the count assault People’s motion to dismiss at issue declined to rule on the accepted it allegation at the same time deadly and to strike the knife use weapon Instead, it would and indicated People’s motion under submission plea. the court took sentencing. ruling its at the time of make 186 instance, the documents
limiting a record of conviction. comprising For what if a officer’s contains report information favorable to a defendant and shows the conviction should prior felony not be considered a strike? Under the a trial court majority’s analysis, would be barred from admitting information, such even considering the balance of the record of though conviction otherwise supports finding felony was serious or violent. There no appears legal, logical, reason to limit a trial public policy Woodell, court’s review to such misleadingly (See information. incomplete 17 Cal.4th at 456 similar concern in the context of p. [noting appellate opinions].)
II. As an additional justification its conclusion that a defendant’s admis- conviction, sion of facts in a officer’s outside record of states: majority defendant’s statement made in “Permitting a postconvic- tion to be used him to against establish nature of the conviction would . . . harm akin to double jeopardy creat[e] forc[e] ante, defendant to the circumstances of the relitigate crime.” (Maj. opn., 180, at 343, p. relying (1988) v. Guerrero 44 Cal.3d 355 [243 688, 1150].) 748 P.2d Cal.Rptr. This is devoid of reasoning merit. 867,
In
v.
Melton
44 Cal.3d
750 P.2d
[244
741], the defendant in a
case
that evidence
capital
argued
criminal
had
activity
been
to a
previously
subject
should not have
plea bargain
concluded,
been
however,
admitted at the
Melton
penalty phase.
that “one is
‘twice in
placed
for the same offense’
jeopardy
when the details of
misconduct which has
already resulted
conviction and
inor
punishment,
dismissal
ato
or for
pursuant
bargain
witness
are
plea
unavailability,
pre-
sented in a later
on the
proceeding
issue of
separate
appropriate penalty
17;
for a
offense.”
fn.
see also
subsequent
Monge California
(1998) 524 U.S.
L.Ed.2d
S.Ct.
jeopardy
[141
2246] [double
clause does not extend to
sentencing
noncapital
proceedings]; People Monge
(1997)
Setting sentencing offense, and does to double same subject jeopardy also aside the that double are in setting legal any point jeopardy principles v. (Monge California, event in the context inapplicable noncapital sentencing supra, 724), U.S. at it remains unclear how the harm p. perceived could be consideration of a officer’s majority implicated probation report, (Reed) but not also by consideration of a or an preliminary hearing transcript (Woodell). The discussion on this is appellate opinion majority’s point vague, and no meaningful distinction appears.
III. The Three Strikes law makes clear the intent “to ensure Legislature’s longer sentences and prison greater for those who commit a punishment felony have been convicted of serious and/or violent previously felony (§ (b).) offenses.” subd. A officer’s is probation report reasonably viewed as logically record of a defendant’s part (1) because: officer’s is an official document probation report crime; designed include the facts and circumstances of the the rules governing of such with the preparation reports, coupled opportunity afforded defendants to in the challenge misstatements contribute to reports, therein; of the information reliability contained a trial court in a negotiated case retains broad plea discretion at a to affirm sentencing hearing or withdraw its of a prior approval bargain based on facts disclosed in a probation officer’s and other report information coming light. subsequently Given the nature and content of a officer’s as well as the probation report, role such a context of a report may play negotiated I can specific plea, conclude that a only officer’s is considered report properly the record of the serious or violent purposes determination. said,
That I do not take issue with the decisional law that a recognizing trial court consider the matters contained in a officer’s to the only extent the matters are relevant and otherwise admissible under the normal rules of evidence. In this does not contest regard, majority Monreal, determination in supra, that a Cal.App.4th admission in a is admissible in a under Evidence Code sentencing hearing sections 1220 admission (party rule) to the and 1280 exception hearsay record (public employee exception). Monreal, Reed, 676-678; see also Cal.App.4th pp. 13 Cal.4th at Neither do I. *21 sum, I trial strongly In with determination that the disagree majority’s court declined to consider defendant’s statement in the properly that, “I stuck with the knife.” Because defendant’s victim] [the was admission reflected in an official document that properly belongs conviction, record of because the admission was admissible in 1280,1 court under Evidence Code sections 1220 and would affirm the Court matter to the trial court for a retrial judgment remanding Appeal’s the prior allegation.
Chin, J., I., concurred. Corrigan,