Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 07CM7028, Peter M. Schultz, Judge.
Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Jeanne R. Wolfe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
A jury found appellant guilty of battery by a confined person upon a non-confined person (Pen. Code, § 4501.5). The victim was appellant’s court-appointed attorney, Mr. Robert Stover, who was representing appellant at a trial on a misdemeanor charge. Appellant struck Mr. Stover and yelled “conflict of interest” as Stover was making an argument to the court in support of a defense motion to exclude evidence “in regards to prior acts” of appellant. The jury also found true allegations that appellant had prior convictions for violations of “PC 187(a)” (murder) and “PC 245(a)(1).” The section 4501.5 conviction was appellant’s third strike, and he was sentenced to a term of 25 years to life.
All further statutory references are to the Penal Code unless otherwise stated. Section 4501.5 states: “Every person confined in a state prison of this state who commits a battery upon the person of any individual who is not himself a person confined therein shall be guilty of a felony and shall be imprisoned in the state prison for two, three, or four years, to be served consecutively.”
One violates section 245, subdivision (a)(1) when one “commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury .…” As we shall explain later in this opinion, some violations of section 245, subdivision (a)(1) are “strikes” under California’s three strikes law (§ 667, subds. (b) through (i); § 1170.12, subds. (a) through (d)) and some are not.
Appellant raises five contentions of error. They are: (1) the trial court erred in failing to instruct the jury with a “necessity defense” instruction not requested by the defense at trial; (2) the trial court erred in permitting the prosecution to impeach appellant’s trial testimony with evidence of appellant’s prior convictions for murder and assault with a deadly weapon, and refused a bifurcated trial on the prior conviction allegations; (3) the cumulative effect of purported errors “(1)” and “(2)” above deprived appellant of a fair trial; (4) the trial court deprived appellant of his right to a jury trial on the prior conviction allegations by instructing the jury with CALCRIM No. 3100; and (5) the court erred in sentencing appellant as a third striker because (a) appellant’s jury was not permitted to decide whether his section 245, subdivision (a)(1) prior conviction qualified as a “strike” under the three strikes law, (b) the court made no express finding that the section 245, subdivision (a)(1) prior conviction was a strike, and (c) the evidence was insufficient to establish that the section 245, subdivision (a)(1) prior conviction was a strike.. As we shall explain, we find all of these contentions to be without merit. We will affirm the judgment.
FACTS
Appellant’s battery of Stover was captured on two security cameras located in the courtroom. Both of the videos were received into evidence and played for the jury. The jury heard testimony from several witnesses to the incident, including the judge who presided at the misdemeanor trial, the victim (Stover), the courtroom clerk, the correctional sergeant who transported appellant to the courtroom on the day of the incident and who sat in the front row of the courtroom that day, one of the two correctional officers who sat directly behind appellant for security purposes and who subdued appellant immediately after the battery on Stover, and appellant himself. Also received into evidence was a letter appellant wrote to an entity called California Prison Focus that began: “Dear CPF, the fight for justice continues. Literally. Yesterday I had to get rid of my lawyer, Mr. Stover. He was assaulted in the courtroom.” Stover testified “I remember actually seeing the knuckles coming right at my eyes and I don’t recall anything from there to the floor.” The jury also saw a photograph taken of Mr. Stover shortly after the attack. Stover described the photograph as accurately depicting the way he looked after he was struck by appellant and “after I cleaned some of the blood after [sic] my face.”
Appellant testified that he struck Stover because “I had gave him a list … of 33 witnesses he didn’t call and he had been lying to me.” He did not identify at this trial any particular witness he had wished to call at his December 2006 misdemeanor trial, and did not attempt to explain what knowledge any of these 33 witnesses had that was pertinent to the misdemeanor charges he was facing at his December 2006 misdemeanor trial. Nor did appellant explain what Stover’s “lie” was. Nor did he present any evidence that he had ever made a Marsden motion at his misdemeanor trial to attempt to have Stover replaced with a different court-appointed attorney. Stover testified that “[t]he majority of Mr. Brashear’s witnesses were the judge, the prosecutor, a number of other persons of that nature that were involved in his earlier trial that were completely irrelevant to the matter he was being tried for.” Stover explained the “earlier trial” he was referring to was appellant’s “murder trial.”
People v. Marsden (1970) 2 Cal.3d 118
Appellant’s trial counsel’s argument to the jury made clear that the “defense” he presented was the case appellant wished to present – to explain to the jury why appellant did what he did, and in essence to ask for mercy. Trial counsel began his argument as follows: “Just a few comments. [¶] We sat through this process because Mr. Brashear has that right. He’s got the right to have a prosecutor bring in the evidence and prove these allegations. [¶] Now, Mr. Brashear wanted that opportunity and testified yesterday even though he didn’t have to. But he wanted the opportunity to explain to you his conduct, and you heard his conduct.” His argument ended as follows: “When driven to extreme circumstances, extreme circumstances in that he did not feel adequately represented, and he wanted a lawyer to accurately or vigorously defend him, and that’s why he did what he did. [¶] Now, he didn’t have a choice of lawyers. Mr. Stover was appointed by the Court. Mr. Stover [sic] was basically stuck with whomever came down to represent him, and it was his fear of being railroaded, quite frankly, and that’s his point to make with you is that it was his fear of being [railroaded]. [¶] Mr. Brashear wants you to arrive at what he would deem as a just verdict in this case. He wants you to find him not guilty, ladies and gentlemen.”
I.
NECESSITY
“A defendant raising the defense of necessity has the burden of proving that he violated the law ‘(1) to prevent a significant evil, (2) with no adequate alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief in the necessity, (5) with such belief being objectively reasonable, and (6) under circumstances in which he did not substantially contribute to the emergency.’ (People v. Pepper (1996) 41 Cal.App.4th 1029, 1035.” (People v. Miceli (2002) 104 Cal.App.4th 256, 267; in accord, see also People v. Verlinde (2002) 100 Cal.App.4th 1146, 1164, and People v. Kearns (1997) 55 Cal.App.4th 1128, 1135.) “Necessity does not negate any element of the crime, but represents a public policy decision not to punish an individual despite proof of the crime.” (People v. Heath (1989) 207 Cal.App.3d 892, 901. “The defense of necessity generally recognizes that ‘the harm or evil sought to be avoided by (the defendant’s) conduct is greater than that sought to be prevented by the law defining the offense charged.’ [Citation.]” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 100.)
In the present case appellant’s trial counsel did not raise a defense of necessity. Appellant now contends that the trial court should have instructed the jury, on the court’s own initiative, on the defense of necessity. We disagree. “The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request.” (People v. Blair (2005) 36 Cal.4th 686, 744; in accord, see also People v. Dominguez (2006) 39 Cal.4th 1141, 1158.) “In the absence of a request for a particular instruction, a trial court’s obligation to instruct on a particular defense arises ‘“only if [1] it appears that the defendant is relying on such a defense, or [2] if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defense’s theory of the case.”’ [Citations.]” (People v. Dominguez, supra, 39 Cal.4th at p. 1148.)
Neither of those requirements was met here. Appellant never took the position in the trial court that it was necessary for him to attack Mr. Stover. He merely sought to, and did, explain why he did what he did. Nor was there substantial evidence to support a necessity defense. As to the first element of a necessity defense, there was no evidence of any “significant evil” to be avoided. What appellant was attempting to avoid was any completion of his trial on a misdemeanor charge. A fair trial is a good thing, not a significant evil. Nor did appellant attempt to present any evidence that his misdemeanor trial would have been unfair without the 33 witnesses he wished to call. The evidence we have on this issue came from Stover, whose testimony about these 33 witnesses was quoted above and suggests that appellant either wanted to relitigate his murder conviction or wanted to use the misdemeanor trial as a forum to air grievances about how his 1989 murder trial was conducted. As to the second element, appellant presented no evidence of “no adequate alternative.” A defendant represented by court-appointed counsel in a criminal case (see Gideon v. Wainwright (1963) 372 U.S. 335, 9 L.Ed.2d 799, 83 S.Ct. 792) may request a different attorney. “However, the decision whether to permit a defendant to discharge his appointed counsel and substitute another attorney during the trial is within the discretion of the trial court, and a defendant has no absolute right to more than one appointed attorney. ‘A defendant’s right to a court-appointed counsel does not include the right to require the court to appoint more than one counsel, except in a situation where the record clearly shows that the first appointed counsel is not adequately representing the accused…. “The right of a defendant in a criminal case to have the assistance of counsel for his defense … may include the right to have counsel appointed by the court … discharged or other counsel substituted, if it is shown … that failure to do so would substantially impair or deny the right …, but the right to such discharge or substitution is not absolute, in the sense that the court is bound to accede to its assertion without a sufficient showing … that the right to the assistance of counsel would be substantially impaired … in case the request is not granted, and within these limits there is a field of discretion for the court.”’ [Citations.]” (People v. Marsden, supra, 2 Cal.3d at p. 123.)
As to the third element of a necessity defense, appellant presented no evidence that his battery of Stover did not create “a greater danger than the one avoided.” The dangers created by the battery included a risk of serious injury to Mr. Stover. There was no danger at all to be avoided if there had been no battery of Stover by appellant. As to elements four and five, regardless of what appellant’s subjective belief may have been, there was no objectively reasonable belief that appellant’s battery of Stover was necessary. As the prosecutor stated in his argument to the jury: “You didn’t hear anything in any of the instructions nor will you find them in the written ones that says if you don’t like your lawyer you can hit him. There is no legal defense for what he did.” As to element six, there was no evidence of any “emergency.” In sum, the court did not err by not instructing the jury, on the court’s own initiative, on the unasserted defense of necessity.
II.
APPELLANT’S PRIORS AND BIFURCATION
Prior to jury selection, appellant moved to bifurcate trial on the prior conviction allegations from the trial on the section 4501.5 charge. The court inquired as to whether appellant would be testifying. Appellant’s counsel responded that appellant did intend to testify, and that appellant would like the court to “sanitize” appellant’s prior convictions by allowing appellant to testify on the section 4501.5 charge that he had been convicted of crimes involving moral turpitude. Appellant wished to keep the specific nature of those prior convictions (first degree murder and assault with a deadly weapon) from the jury until a bifurcated trial on those prior conviction allegations. The prosecutor expressed no view on the bifurcation request, but did express a desire to “be allowed to impeach Mr. Brashear with the actual types of felony convictions he has.” Appellant specifically objected under Evidence Code section 352 to the jury hearing the specific nature of the two prior felony convictions and argued that the prejudice to appellant from this evidence would outweigh its probative value. The court exercised its discretion under Evidence Code section 352 to admit the evidence. The court then denied appellant’s motion for bifurcation and explained that “since Mr. Brashear apparently is intending to testify and the evidence of the priors will be coming in for impeachment, there is no – nothing to be gained by bifurcating the trial.”
Appellant contends that the court erred in denying his motion to bifurcate and in overruling his Evidence Code section 352 objection and permitting the jury trying him on the section 4501.5 charge to hear that his prior convictions were for murder and for assault with a deadly weapon. Both of these rulings were subject to the discretion of the trial court. (See People v. Calderon (1994) 9 Cal.4th 69, 72 [a trial court “has the discretion, in a jury trial, to bifurcate the determination of the truth of an alleged prior conviction from the determination of the defendant’s guilt of the charged offense”] and People v. Castro (1985) 38 Cal.3d 301, 306 [“always subject to the trial court’s discretion under section 352” a defendant may be impeached with “any felony conviction which necessarily involves moral turpitude”]. Although the parties disagree as to whether the trial court exceeded the bounds of reason in making these rulings (see People v. Clair (1992) 2 Cal.4th 629, 655, and People v. Stewart (1985) 171 Cal.App.3d 59, 65), we need not dwell on whether those rulings were or were not correct because, as we shall explain, they were not prejudicial to appellant.
The denial of bifurcation did not, by itself, cause appellant any harm. Once the court determined that appellant could be impeached with his prior convictions for first degree murder and assault with a deadly weapon, it did not matter whether the prior conviction allegations were bifurcated or not. The jury would still hear about those prior convictions in determining appellant’s guilt on the section 4501.5 charge. Nor did the denial of bifurcation deter appellant from testifying. The only harm to appellant was whatever harm was caused by the court’s decision to allow appellant to be impeached with the prior convictions. Even if we were to assume, without deciding the issue, that the court abused its discretion in overruling appellant’s Evidence Code section 352 objection, any error in the erroneous admission of evidence is a ground for reversal “only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836; see also Evid. Code, § 353 and People v. Marks (2003) 31 Cal.4th 197, 226-227.) Here, there was no reasonable probability of a more favorable result for appellant. The evidence that appellant was an inmate and that Stover was not an inmate was undisputed, and the jury saw not just one but two videos of appellant committing the battery upon Stover. The jury also heard about the battery from several witnesses, including appellant himself. Appellant testified that he remembered striking Stover with a fist and further testified that he “never denied” hitting Stover. There was no evidence that appellant did not commit the battery.
III
CUMULATIVE ERROR
“[A] series of errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.” (People Hill (1998) 17 Cal.4th 800, 844; in accord, see also People v. Cunningham (2001) 25 Cal.4th 926, 1009.) Appellant’s cumulative error argument assumes that the court erred in not instructing the jury, on the court’s own initiative, on the defense of necessity. As we explained in part “I” of our opinion, ante, there was no such error. And as we explained in part “II,” any assumed error in denying bifurcation and in allowing appellant to be impeached with his prior convictions would not warrant reversal given the overwhelming and undisputed evidence of appellant’s guilt.
IV.
JURY TRIAL ON PRIOR CONVICTION ALLEGATIONS
To prove the prior conviction allegations the prosecutor offered, and the court received into evidence as Exhibit 5, California Department of Corrections and Rehabilitation records showing appellant’s convictions for first degree murder (Mar. 26, 1991 nunc pro tunc to June 21, 1989) and assault with a deadly weapon (Sept. 11, 1989), the court instructed appellant’s jury with CALCRIM No. 3100, which stated in pertinent part: “It has already been determined that the defendant is the person named in exhibit 5. You must decide whether the evidence proves the defendant was convicted of the alleged crime[s].” Appellant contends that this instruction deprived him of a constitutional right to have a jury decide all issues pertaining to prior conviction allegations which will have an effect on his sentence.
The California Supreme Court has determined that he does not. “The right, if any, to a jury trial of prior conviction allegations derives from sections 1025 and 1158, not from the state or federal Constitution. [Citations.]” (People v. Epps (2001) 25 Cal.4th 19, 23; in accord, see also People v. Garcia (2003) 107 Cal.App.4th 1159, 1164-1165.) The court may “instruct the jury to the effect that the defendant is the person whose name appears on the documents admitted to establish the conviction.” (People v. Epps, supra, 25 Cal.4th at p. 27.) That is what the court did here. “This procedure would appear to leave the jury little to do except to determine whether those documents are authentic and, if so, are sufficient to establish that the convictions the defendant suffered are indeed the ones alleged. Whether this role makes sense is not for us to say. If the Legislature wants to provide a greater, or more precisely defined, role for the jury, or chooses to eliminate the jury altogether as many states have done, it may still do so.” (Id. at p. 27, italics omitted.) The decisions of the California Supreme Court “are binding upon and must be followed by all the state courts of California.” (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
V.
APPELLANT’S PRIOR CONVICTION FOR ASSAULT WITH A DEADLY WEAPON
Appellant was sentenced to a term of 25 years to life because he had two qualifying “prior felony convictions” (§ 667, subd. (e)(2)(A); § 1170.12, subd. (c)(2)(A)), commonly called “strikes.” A prior felony conviction is defined, for purposes of California’s three strikes law, to include “[a]ny offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state.” (§ 667, subd. (d)(1); § 1170.12, subd. (b)(1).) One of appellant’s prior felony convictions was for murder (§ 187, subd. (a)). Murder is among the violent felonies listed in section 667.5. (See § 667.5, subd. (c)(1).) Appellant’s other prior conviction was for a violation of section 245, subdivision (a)(1). A person violates section 245, subdivision (a)(1) when that person “commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by means of force likely to produce great bodily injury.” (§245, subd. (a)(1).) An assault with a deadly weapon is a “serious felony.” (§ 1192.7, subd. (c)(31).) So is “any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice .…” (§ 1192.7, subd. (c)(8).) But an assault upon the person of another by means of force likely to produce great bodily injury is not a “serious felony” if the defendant does not personally inflict great bodily injury. (§ 1192.7, subd. (c)(8).) “[A]ssault merely by means likely to produce GBI, without the additional element of personal infliction, is not included in the list of serious felonies. Hence … a conviction under the deadly weapon prong of section 245(a)(1) is a serious felony, but a conviction under the GBI prong is not.” (People v. Delgado (2008) 43 Cal.4th 1059, 1065.) Nor is a conviction under the GBI prong of section 245, subdivision (a)(1) a “violent felony” unless great bodily injury is actually inflicted and certain pleading requirements (not present in the case now before us) are met. (See § 667.5, subd. (c)(8).)
Appellant contends that the court erred in sentencing appellant as a third striker (§ 667, subd. (e)(2)(A); § 1170.12, subd. (c)(2)(A)) because (1) appellant’s jury was not permitted to decide whether his section 245, subdivision (a)(1) conviction qualified as a “strike” under the three strikes law (see § 667, subd. (d) & § 1170.12, subd. (b)); (2) even if the court, and not the jury, should properly make such a determination, the court here failed to make an express determination that appellant’s section 245, subdivision (a)(1) conviction qualified as a “strike”; and (3) there was insufficient evidence to support a finding that appellant’s section 245, subdivision (a)(1) prior conviction qualified as a strike.
(1)
As for the first of these three contentions, appellant concedes that the issue was decided against him in People v. McGee (2006) 38 Cal.4th 682, and that this court is obligated under stare decisis to follow McGee. “Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. … The decisions of this court are binding upon and must be followed by all the state courts of California.” (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
(2)
As for the second contention, appellant cites no authority for his argument that the trial court was required to make an express finding that appellant’s prior conviction for a violation of section 245, subdivision (a)(1) was a qualifying prior felony conviction under the three strikes law. The information alleged that “pursuant to Penal Code Sections 1170.12(a) through (d) and 667(b) through (i) … the defendant(s) … suffered the following prior conviction(s) of a serious or violent felony …: … 09/11/89 … PC 245(a)(1) ….” The jury found that appellant suffered the section 245, subdivision (a)(1) conviction, and the court sentenced appellant in accordance with section 667, subdivision (e)(2)(A) and section 1170.12, subdivision (c)(2)(A), the sections applicable when “a defendant has two or more prior felony convictions” under the three strikes law. The court thus impliedly found that appellant’s section 245, subdivision (a)(1) prior conviction was a qualifying prior felony conviction under the three strikes law. This is not surprising because appellant never contended at trial that his section 245, subdivision (a)(1) prior conviction was not a qualifying prior felony conviction. “The general rule is that a trial court is presumed to have been aware of and followed the applicable law.” (People v. Mosley (1997) 53 Cal.App.4th 489, 496.) “‘“A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.”’ [Citation.]” (People v. Martinez (1998) 65 Cal.App.4th 1511, 1517, quoting from Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
Furthermore, it does not appear to us that the record is silent as to the trial court’s conclusion that appellant’s section 245, subdivision (a)(1) prior conviction was a strike. At the sentencing hearing the trial court stated that appellant was “here for a sentencing hearing following his conviction by jury of a violation of Section 4501.5 of the Penal Code plus two prior serious felony convictions.” A serious felony is by definition a strike under the three strikes law. (§ 667, subd. (d)(1); § 1170.12, subd. (b)(1).)
At oral argument appellant cited In re Candelario (1970) 3 Cal.3d 702 (Candelario) as authority for his contention that there was no adequate express finding that his section 245, subdivision (a)(1) prior conviction was a strike under the three strikes law. We are not persuaded. The case has nothing to do with the three strikes law and was decided more than two decades prior to the enactment of that law. It was also decided prior to the enactment of California’s Determinate Sentencing Law. In Candelario the defendant was found guilty of selling heroin. The penalty for that crime was “five years to life imprisonment, without eligibility for parole for at least three years.” (Candelario, supra, 3 Cal.3d at p. 705.) If the defendant had a “prior narcotics felony conviction,” however, the penalty increased to 10 years to life, without eligibility for parole for 10 years. (Ibid.) At the pronouncement of judgment the court made no mention of any prior narcotics felony conviction. As was appropriate at that time, the court ordered “‘that the defendant be placed in the custody of the Department of Corrections and imprisoned in the Department of Corrections for the period of time prescribed by law.’” (Candelario, supra, 3 Cal.3d at p. 707.) “Under the [former Indeterminate Sentencing Law] … the Legislature prescribed both the minimum and maximum terms for each offense punishable by imprisonment .… but simply sentenced the defendant for the term ‘prescribed by law.’ [Citation.] … The Adult Authority or its predecessor agencies determined and redetermined within those very wide statutory ranges, the length of term the offender would actually be required to serve. [Citation.]” (In re Gray (1978) 85 Cal.App.3d 255, 259.) “The Indeterminate Sentencing Law was repealed in 1976 and replaced by the Determinate Sentencing Law, under which a defendant is normally sentenced to a specific term.” (6 Witkin & Epstein, Cal. Criminal Law (2000) Criminal Judgment, § 154; see § 1170 et seq.) About a month after the judgment in Candelario was pronounced, the trial court filed an amended abstract of judgment adding a 1953 felony conviction for possession of marijuana. In a habeas corpus proceeding, the California Supreme Court held that the amendment to the abstract of judgment was “in excess of the court’s jurisdiction” and “ineffective for any purpose.” (Candelario, supra, 3 Cal.3d at p. 708.) The court stated: “Reference to the prior conviction must be included in the pronouncement of judgment for if the record is silent in that regard, in the absence of evidence to the contrary, it may be inferred that the omission was an act of leniency by the trial court. In such circumstances, the silence operates as a finding that the prior conviction was not true.” (Candelario, supra, 3 Cal.3d at p. 706, fn. omitted.) The California Supreme Court ordered The Adult Authority “to fix petitioner’s sentence and determine his eligibility for parole on the basis of the original abstract of judgment .…” (Id. at p. 708.)
In the case presently before us, the trial court did not order appellant imprisoned “‘for the period of time prescribed by law’” (Candelario, supra, 3 Cal.3d at p. 707), and did not allow the Adult Authority to determine what the minimum term would be. The court stated that appellant was “here for sentencing hearing following his conviction by jury of a violation of Section 4501.1 of the Penal Code plus two prior serious felony convictions” and then sentenced appellant as a third striker “to the California State Prison for the term of 25 years to life to be served consecutive to the term that he’s now serving in San Diego County Case number CR-96058.)” Appellant was already serving a term of 27 years to life in San Diego County case No. CR-96058. That was his prior conviction for first degree murder. There was no “silence” from which it might “be inferred” that the court found only one of appellant’s prior convictions to be a qualifying prior felony conviction under California’s three strikes law. (See, § 667, subd. (d)(1), and § 1170.12, subd. (b)(1).) (Candelario, supra, 3 Cal.3d at p. 706.) Finally, we note that even if the trial court had not expressly stated that appellant had “two prior serious felony convictions,” California courts have held that sentencing a defendant in a manner in which the defendant would be sentenced if a special allegation were true is an implied and sufficient finding of true as to that special allegation. (People v. Clair, supra, 2 Cal.4th at p. 691, fn. 17; People v. Chambers (2002) 104 Cal.App.4th 1047, 1051.)
Shortly before the date of oral argument on this appeal, respondent wrote to the court and requested that we “correct” the abstract of judgment to expressly mention appellant’s section 245, subdivision (a)(1) prior conviction. Appellant countered that there was judicial error, not clerical error. “It is not open to question that a court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts. [Citations.] [¶] “… The distinction between clerical error and judicial error is ‘whether the error was made in rendering the judgment, or in recording the judgment rendered.’ [Citation.]” (Candelario, supra, 3 Cal.3d at p. 705.) We fail to see the need for the requested “correction.” We see neither clerical error nor judicial error. The abstract correctly states that appellant was sentenced to a term of 25 years to life pursuant to the three strikes law. (See, § 667, subd. (d)(2)(A); and § 1170.12, subd. (c)(2)(A).) Appellant’s prior conviction for murder is mentioned in the abstract of judgment because, as the abstract states, appellant’s sentence in the present case is “to run consecutive to” his sentence in the murder case. Respondent’s request that we order a modification of the abstract to correct a “clerical error” is therefore denied.
(3)
As for the third contention, the evidence presented at trial included an abstract of judgment showing that on September 11, 1989 appellant was convicted in the San Diego County Superior Court of a violation of “PC 245(a)(1),” described as “assault w/deadly wpn.” This was sufficient evidence to support a finding that appellant’s section 245, subdivision (a)(1) prior conviction was for assault with a deadly weapon. (People v. Delgado, supra, 43 Cal.4th at p. 1063.) In Delgado an abstract of judgment specified the statute violated by the defendant as “245(A)(1)” and described the crime as “Asslt w DWpn.” (Ibid.) The California Supreme Court found that this was sufficient for the trial court to conclude that the defendant’s prior conviction “had occurred under the deadly weapon prong of section 245(a)(1), and was thus for a serious felony.” (Ibid.) “Whatever the penal significance of the abstract’s description, the trial court was entitled to infer that it had been accurately prepared. When, as here, the abstract first identified the statute by section number, then separately and clearly described only one of the two means by which the statute can be violated, the court was not required to assume the descriptive language was mere surplusage. Absent any rebuttal evidence, the court could reasonably infer that the words were there for a reason, that they meant what they said, and that they accurately set forth the form of violation for which the defendant was convicted.” (People v. Delgado, supra, 43 Cal.4th at p. 1071, fn. omitted.) In the present case, the court had not only the abstract of judgment, but also appellant’s own testimony in the current trial that he had been convicted of assault with a deadly weapon. He testified on cross-examination as follows:
“Q. … You do admit that you do have a first degree murder conviction from around 1989 or 1990; correct?
“A. 1989.
“Q. Okay.
“And then you have an assault with a deadly weapon conviction from around that same time as well; don’t you?
“A. Yes, sir.”
There was no evidence that appellant’s section 245, subdivision (a)(1) conviction was for anything other than assault with a deadly weapon.
DISPOSTION
The judgment is affirmed.
WE CONCUR: Vartabedian, J., Cornell, J.