Opinion
B189060
5-4-2007
THE PEOPLE, Plaintiff and Respondent, v. SHAUN ARRINGTON, Defendant and Appellant.
Thien Huong Tran, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Shaun Arrington appeals from the judgment entered upon his conviction by jury of attempted carjacking (Pen. Code, §§ 664/215, subd. (a)) with the finding that he had sustained a prior juvenile adjudication which was alleged within the meaning of the three strikes law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). He was sentenced to prison for five years, comprised of the two-year, six-month middle term for attempted carjacking doubled under the three strikes law.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant contends that the evidence was insufficient to establish that his prior juvenile adjudication constituted a violent or serious felony and therefore it did not qualify as a strike under the three strikes law.
We asked the parties to submit supplemental briefs addressing whether the trial court ruled on the issue of whether the juvenile adjudication of assault constituted a serious or violent felony, and, if the trial court did not, whether the matter must be remanded for the trial court to make that determination.
Appellant submitted a letter brief in which he states that the trial court did not make a finding as to whether his assault adjudication qualified as a serious or violent felony. He argues that under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Cunningham v. California (2007) 549 U.S. ___ (Cunningham), the jury was required to make this finding, and since it did not, the matter must be remanded for the jury, not the trial court, to make the determination.
Respondent submitted a letter brief arguing that the trial court ruled, at least impliedly, on the issue of whether the prior assault constituted a serious or violent felony. Respondent further argues that even if it did not, remand is unnecessary because the evidence substantially supports both the jurys verdict and a legal finding that the assault was a serious or violent felony.
We conclude that the matter must be remanded for a determination of this issue by the trial court. We otherwise affirm.
FACTS AND PROCEDURAL BACKGROUND
The evidence established that on December 18, 2004, appellant approached a vehicle that was stopped for a red light on a Bellflower street. He tried to open the locked front passenger door, then went around to the drivers side and tried to open the locked drivers door. Repeatedly ordering the driver to get out, he reached into the vehicle through the open window and unlocked the drivers door. However, the driver locked the door again and rapidly drove away. The driver called 911. Appellant was apprehended shortly thereafter a few blocks away following a second incident, in which he approached the driver of another vehicle, opened the door, and punched the driver in the face.
Although the driver in this second incident then got out of his truck, appellant told him that he did not want the vehicle. An attempted carjacking charge based on this incident was dismissed on motion of the prosecution.
The information alleged within the meaning of the three strikes law that appellant had sustained a 1989 juvenile adjudication for a violation of section 245. The prosecutor entered in evidence Peoples exhibit 1, which contained a Welfare and Institutions Code section 602 petition filed in 1989 that alleged, inter alia, that appellant committed an assault upon the victim "with a deadly weapon, to wit, a ROCK, and by means of force likely to produce great bodily injury." The exhibit also contained minute orders indicating that the juvenile court found the allegations in the petition true, sustained the petition, and committed appellant to the California Youth Authority.
The trial court found that appellant was the person who had suffered the prior adjudication, and the jury found true the allegation that appellant had suffered a prior conviction or adjudication of violating section 245, subdivision (a)(1). However, the trial court did not determine whether the prior adjudication constituted a serious or violent felony. At sentencing, the trial court imposed the middle term for attempted carjacking and ordered the term "doubled as a consequence of the strike prior."
The jurys verdict on the prior allegation was taken by a commissioner who was substituting for the trial judge. Appellant was sentenced by the trial judge. Neither the commissioner nor the trial judge addressed the issue of whether the prior adjudication constituted a serious or violent felony.
DISCUSSION
At the outset, appellant contends that the evidence introduced by the prosecutor failed to establish that his prior juvenile adjudication, in which he was found to have committed assault, constituted either a serious or violent felony, and thus that it was not established that the prior adjudication was a strike. Before reaching the merits of this claim, we must address the circumstance that, as both parties acknowledge, the trial court failed to make an express finding as to whether the prior offense constituted a serious or violent felony.
Respondent relies on People v. Clair (1992) 2 Cal.4th 629 (Clair), People v. Chambers (2002) 104 Cal.App.4th 1047 (Chambers), and People v. Williams (2002) 99 Cal.App.4th 696 (Williams) in arguing that by doubling appellants sentence under the three strikes law, the trial court made an implied finding that the prior offense constituted a serious or violent felony. Under the circumstances of this case, we reject respondents claim.
Williams, supra, 99 Cal.App.4th 696, which considered whether a jurys finding on a prior conviction allegation under section 1170.12, the three strikes law, sufficed to support imposition of a section 667, subdivision (a) enhancement based on the same prior, is inapposite.
In Clair, supra, 2 Cal.4th 629, the Supreme Court considered the situation where the defendant waived jury trial on a prior serious felony conviction allegation, evidence was introduced before the trial court, and the trial court ultimately imposed an enhancement for the prior conviction. The Supreme Court determined that "[a]t sentencing, the [trial] court impliedly—but sufficiently—rendered a finding of true as to the allegation when it imposed an enhancement expressly for the underlying prior conviction." (Clair, supra, at p. 691, fn. 17.) Notably, the Supreme Court observed that the "question" of the truth of the prior conviction allegation had been "argued to the court." (Ibid.)
In Chambers, supra, 104 Cal.App.4th 1047, the trial court failed to expressly find that the allegation of personal use of a firearm was true when it found the defendant guilty of the charged offense following a court trial. The reviewing court found that the oral pronouncement of judgment, during which the trial court imposed a firearm use enhancement, constituted an implied finding. (Chambers, supra, at p. 1050.) The court found Clair to be the controlling authority.
Here, in contrast to the situation in Clair, the issue plainly was not argued to the court, perhaps because the commissioner who took the jurys verdict believed that the matter would be considered when the matter resumed before the trial court while the trial court believed that the matter had been ruled upon by the commissioner. The language of the Chambers court, although it determined that there had been an implied finding, is apt here: "If we had any doubt about the trial courts finding, we would resolve it in favor of appellant. Based upon People v. Clair, supra, 2 Cal.4th at page 691, footnote 17, and a fair reading of the sentencing transcript, we have no doubt that the trial court impliedly found the firearm-use allegation true. Thus, we can perform the appellate function with confidence. There has been no miscarriage of justice, and a remand for an express finding would be an exaltation of form over substance." (Chambers, supra, 104 Cal.App.4th at p. 1051.)
The court observed that, given the drastically increased punishment resulting from the firearm use finding, "[a]ny conscientious prosecutor would endeavor to make a sufficient record so that the enhancement could be upheld on appeal without resort to implied findings." (Chambers, supra, 104 Cal.App.4th at pp. 1051-1052.)
In appellants case, given the fact that this issue, which here has both a legal and factual component, was not argued before or considered by either judicial officer, we cannot deem the trial courts imposition of a second-strike sentence an implied finding that the prior adjudication was a serious or violent felony.
Moreover, we find that the evidence contained in the record is insufficient to establish that the prior adjudication constituted a serious or violent felony.
An otherwise qualifying prior adjudication constitutes a strike if it was a serious or violent felony as determined at the time of the current offense. (§§ 667.1, 1170.125, as effective on the date of appellants offense; see People v. James (2001) 91 Cal.App.4th 1147, 1149-1151.)
Section 245, subdivision (a)(1) includes both assault with a deadly weapon and assault by means of force likely to produce great bodily injury. A conviction of assault in violation of section 245, subdivision (a)(1) constitutes a violent felony under section 667.5, subdivision (c)(8) if the defendant inflicted great bodily injury as proven under sections 12022.7 or 12022.9; it constitutes a serious felony under section 1192.7, subdivision (c) if it was committed with the personal infliction of great bodily injury or with the personal use of a dangerous or deadly weapon (§ 1192.7, subds. (c)(8), (c)(23)). Finally, in a provision added by Proposition 21 in 2000, an assault constitutes a serious felony even in the absence of personal use of the deadly weapon if it was an "assault with a deadly weapon . . . in violation of Section 245." (§ 1192.7, subd. (c)(31).)
Thus, an assault on a civilian by means of force likely to produce great bodily injury, without the use of a deadly weapon, does not constitute a serious felony under section 1192.7. (People v. Banuelos (2005) 130 Cal.App.4th 601, 604-605; Williams v. Superior Court (2001) 92 Cal.App.4th 612, 617.)
The documents submitted as proof of the prior adjudication indicated only that the juvenile court found true an allegation that appellant committed an assault "with a deadly weapon, to wit, a ROCK, and by means of force likely to produce great bodily injury." It was thus not established either that appellant inflicted great bodily injury as proven under sections 12022.7 or 12022.9, that he personally inflicted great bodily injury, or that he personally used a deadly weapon, as opposed to aiding and abetting in the alleged assault. Thus the prior adjudication was not established to be a violent felony under section 667.5, subdivision (c)(8) or a serious felony under section 1192.7, subdivisions (c)(8) or (c)(23).
Further, it was not established that the rock was a deadly weapon under section 1192.7, subdivision (c)(31). Unlike the case of such objects as dirks and blackjacks, which are deadly weapons as a matter of law (People v. Aguilar (1997) 16 Cal.4th 1023, 1029 (Aguilar)), a rock is not a deadly weapon as a matter of law. (See People v. White (1963) 212 Cal.App.2d 464, 465.) The Supreme Court in Aguilar explained that, for purposes of section 245, subdivision (a)(1), a deadly weapon is "`any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury. [Citation.] Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such. [Citation.] Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue. [Citations.]" (Aguilar, supra, at pp. 1028-1029.) Thus, to prove that the prior adjudication was a serious felony under section 1192.7, subdivision (c)(31), the prosecution had to establish that the rock was used in a manner that would make it a deadly weapon. (See People v. Beasley (2003) 105 Cal.App.4th 1078, 1087-1088 [in absence of description of broomstick or evidence of degree of force used by defendant in attacking victim with broomstick, the evidence was insufficient to establish an assault with a deadly weapon].)
Since "`the record does not disclose any of the facts of the offense actually committed," we "`presume that the prior conviction was for the least offense punishable under the . . . law." (People v. Rodriguez (1998) 17 Cal.4th 253, 262.) That "least offense" does not constitute a serious felony. (See People v. Banuelos, supra, 130 Cal.App.4th at pp. 605-607; cf. People v. Luna (2003) 113 Cal.App.4th 395, 397-398.) The evidence here was therefore insufficient to establish that appellants prior assault adjudication was a serious felony. We conclude that the matter must be remanded for a determination of that issue. (People v. Barragan (2004) 32 Cal.4th 236, 239, 259.)
With respect to the exhibits introduced at the trial held on the prior conviction allegation, we note that the related issue of whether reference to "245(a)(1) ASSLT W DWPN" in an abstract of judgment for a prior conviction sufficed to prove that the defendant had previously violated section 245, subdivision (a)(1), by committing assault with a deadly weapon rather than assault by means of force likely to produce great bodily injury, is presently before the California Supreme Court in People v. Delgado, S141282, review granted March 29, 2006.
Appellant contends that under the dictates of Apprendi, supra, 530 U.S. 466, as reaffirmed in Cunningham, supra, 549 U.S. ___ , the jury, not the trial court, must make the determination on remand as to whether the prior conviction was a serious or violent felony. This claim lacks merit.
In Apprendi, the United States Supreme Court stated, "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi, supra, 530 U.S. at p. 490.) Relying on the majority opinion in U.S. v. Tighe (9th Cir. 2001) 266 F.3d 1187, appellant asserts that his juvenile adjudication does not fall within the prior conviction exception set forth in Apprendi because his juvenile adjudication rested on a finding by a court and not a jury, and therefore he was not afforded the constitutional guarantee of jury trial and proof beyond a reasonable doubt.
To the extent appellant is arguing that his juvenile adjudication does not constitute a qualifying prior under the three strikes law, this argument has repeatedly been rejected by California appellate courts, including courts in this district. (People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830-834; People v. Lee (2003) 111 Cal.App.4th 1310, 1312-1316; People v. Smith (2003) 110 Cal.App.4th 1072, 1075-1079 [Second District, Division Seven]; People v. Bowden (2002) 102 Cal.App.4th 387, 391-394 [Second District, Division Four].) We agree with the conclusions reached by these courts, which need not be repeated here. Cunningham, which applies the principles of Apprendi to our determinate sentencing scheme, adds nothing to appellants claim.
Appellant further argues that under Apprendis prior conviction exception, a jury, rather than a judge, must determine whether the adjudication was a serious or violent felony. Here, the jury found that appellant had suffered the prior adjudication, its sole function under the statutory scheme. (See § 1025, subd. (b); People v. Kelii (1999) 21 Cal.4th 452, 458.) In People v. McGee (2006) 38 Cal.4th 682, the Supreme Court considered whether Apprendi altered the principle established in Kelii, supra, at pages 454, 455-458, and other cases that when a prior conviction or adjudication is alleged as a strike under the three strikes law, the trial court, not the jury, makes the determination of whether the prior constitutes a serious or violent felony. The Supreme Court explained that the issue of whether the prior was a serious or violent felony, even when the determination has a factual content, requires the examination of court records, the type of inquiry traditionally performed by judges. (McGee, supra, at p. 709.) The Supreme Court concluded that, even after Apprendi, a defendant is not entitled to a jury determination of that issue. (McGee, supra, at pp. 695-709.)
As appellant acknowledges, Cunningham reaffirms the rule of Apprendi, and thus it adds nothing to this argument. In accordance with McGee, we conclude that, on remand, the trial court shall determine the question of whether appellants prior adjudication was a serious or violent felony.
DISPOSITION
The matter is remanded for a hearing limited to the issue of whether appellants prior juvenile adjudication of violating section 245, subdivision (a)(1) constitutes a serious or violent felony for purposes of the three strikes law, this determination to be made by the trial court. In all other respects, the judgment is affirmed.
We concur:
DOI TODD, J.
ASHMANN-GERST, J.