Opinion
D071801
03-22-2018
THE PEOPLE, Plaintiff and Respondent, v. BRIAN MICHAEL GITRE, Defendant and Appellant.
William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD266146) APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Affirmed. William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Brian Gitre of driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)) (count 1) and driving with a measurable blood alcohol causing injury (§ 25153, subd. (b)) (count 2). As to both counts, the jury found him guilty of personally inflicting great bodily injury (Pen. Code, §§ 1192.7, subd. (c)(8) & 12022.7, subd. (a)), and personally inflicting bodily injury to more than one victim (§ 23558). The jury further found him guilty of willfully refusing a peace officer's request to submit to chemical tests. (§§ 23612 & 23577.)
Further unspecified statutory references are to the Vehicle Code.
Gitre raises three arguments on appeal: (1) defense counsel rendered ineffective assistance when he did not object on due process grounds to the admission of a blood sample; (2) there was insufficient evidence for the jury to find great bodily injury to a victim of the automobile collision; and (3) there was insufficient evidence to establish that his prior 1990 Michigan burglary conviction qualifies as a serious felony under California law. We reject these arguments and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On December 16, 2015, at approximately 1:30 p.m., Gitre drove his vehicle at about 45 to 55 miles per hour toward a red light, where other vehicles were slowing to a stop. Gitre collided with the traffic ahead of him, causing a seven-vehicle collision. The drivers of five vehicles suffered injuries ranging from a sore hip and neck pain to a broken nose. One driver, S.M., suffered collapsed and punctured lungs and ruptured breast implants.
Following the collision, Gitre was transported to the hospital. Hospital staff drew blood from Gitre at approximately 2:30 p.m. for medical treatment. San Diego Police Officer Nicholas Jehl was at the hospital when Gitre arrived. Officer Jehl observed that Gitre was falling asleep while being spoken to, had an odor of alcohol coming from his person, seemed confused or disoriented, and had bloodshot and glassy eyes. Officer Jehl also found that Gitre's speech was disjointed, an opinion shared by Dr. John Frey, the hospital's trauma surgeon. Based on his interaction with and observation of Gitre, Officer Jehl concluded that Gitre had alcohol in his system and was impaired to drive. However, Gitre refused to consent to a blood test. Officer Jehl's body camera recorded a portion of their conversation, which was played for the jury. Police later obtained a warrant to collect blood from Gitre, which was taken by a trained phlebotomist at about 5:45 p.m. Police took custody of the first blood sample from hospital personnel under a warrant and later tested both samples.
DISCUSSION
I. Ineffective Assistance of Counsel
Gitre contends his trial attorney failed to represent him in a competent manner and therefore prejudiced the defense. Gitre bases this claim on his trial attorney's failure to object on due process grounds to the admission of evidence related to the first blood sample, drawn by hospital personnel. We reject Gitre's claim that his counsel provided ineffective assistance.
A. Additional Background
In a pretrial motion, defense counsel sought to exclude the results from the first sample on the basis that the testing failed to comply with California Code of Regulations, title 17, and also challenged the accuracy and reliability of this sample. The court ruled the issue of compliance with title 17 went to the weight and not the admissibility of the evidence.
Further references to title 17 are to the California Code of Regulations. Section 1219.1 of title 17 addresses blood collection and retention for alleged offenses under the Vehicle Code. Section 1220 et seq. of title 17 addresses the testing and analysis methods.
At trial, Lisa Merzwski, a supervising criminalist with the San Diego Police Department, testified that the blood alcohol concentration (BAC) of the first blood sample (drawn by hospital personnel around 2:30 p.m.) was 0.09 percent. Using results from the first blood sample, Merzwski opined that Gitre's BAC at 1:30 p.m., near the time of the collision, would have been about 0.10 to 0.11 percent. The second blood sample (drawn at 5:45 p.m. pursuant to a search warrant), showed Gitre had a BAC of 0.04 percent. Using this second sample, Merzwski testified Gitre's BAC at 1:30 p.m. would have been between 0.087 to 0.127 percent. Merzwski also testified that a person would be impaired for driving purposes at a BAC of 0.08 percent and above.
The defense challenged Merzwski's calculations and opinions on cross-examination. Merzwski acknowledged that the procedures used by the hospital to collect the first sample did not comply with applicable title 17 regulations, but she testified that the integrity of the test results was not impacted by the hospital's collection method. Merzwski also testified that defense counsel requested the blood for independent testing sometime after she had already tested both blood samples. Merzwski determined that there was an insufficient amount of blood remaining from the first sample to retest, but that there was sufficient blood to retest the second sample, and police provided blood from the second sample to the defense. In closing arguments, defense counsel argued that the defense did not have an opportunity to retest the first blood sample and challenge it based on the results of any retest.
B. Legal Principles and Analysis
To meet his burden of proving ineffective assistance of counsel, Gitre must demonstrate that his attorney's performance (1) fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced the defense. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland).) If Gitre makes an insufficient showing on either one of these components, his ineffective assistance claim fails. (Id. at p. 687.)
We evaluate counsel's conduct with deference and "indulge a strong presumption that counsel's acts were within the wide range of reasonable professional assistance." (People v. Dennis (1998) 17 Cal.4th 468, 541.) If the challenged action or omission is the result of an informed tactical decision within the range of reasonable competence, assistance is not ineffective. (See In re Hall (1981) 30 Cal.3d 408, 426.) If the record does not disclose why counsel acted or failed to act, ineffective assistance is established only where there could be no satisfactory explanation for counsel's act or omission. (People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai).) Counsel is not ineffective for failing to make a meritless objection or motion. (People v. Thompson (2010) 49 Cal.4th 79, 122.)
"It is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (Mai, supra, 57 Cal.4th at p. 1009.)
When a defendant claims that the state failed to preserve evidentiary material that could have been subjected to testing, the defendant must meet the standards set forth in California v. Trombetta (1984) 467 U.S. 479 (Trombetta), or Arizona v. Youngblood (1988) 488 U.S. 51 (Youngblood). The governing standard for establishing a due process violation depends on the nature and materiality of the evidence at issue. Gitre must show that the evidence possessed "an exculpatory value that was apparent before the evidence was destroyed and [is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." (Trombetta, supra, 467 U.S. at p. 488.) If the evidence does not have apparent exculpatory value, and is only potentially exonerating, Gitre must show bad faith on the part of the police. (Youngblood, supra, 488 U.S. at pp. 57-58; City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 8; People v. Alvarez (2014) 229 Cal.App.4th 761, 773 (Alvarez) ["[I]f the best that can be said of the evidence is that it was 'potentially useful,' the defendant must also establish bad faith on the . . . police or the prosecution."].)
Gitre argues there was exculpatory value in retesting the first blood sample because (1) there were title 17 violations regarding the preservation or storage of the sample, which the criminalist knew about when she tested the blood; and (2) no comparable blood sample was taken around the same time to substitute for the sample that was consumed by testing. Gitre is unable to establish his trial counsel was ineffective in failing to move for evidentiary sanctions relating to this sample.
In light of our conclusion, we need not consider whether Gitre was prejudiced by any alleged ineffective assistance.
First, Gitre cannot show the evidence had exculpatory value that was known to the police or prosecution before the sample was consumed by testing. (Youngblood, supra, 488 U.S. at p. 56, fn * ["The presence or absence of bad faith by the police . . . must necessarily turn on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed."]; Trombetta, supra, 467 U.S. at p. 489 ["[E]vidence must . . . possess an exculpatory value that was apparent before the evidence was destroyed . . . ."]; Alvarez, supra, 229 Cal.App.4th at p. 773.) There was nothing to indicate that the evidence would be favorable to Gitre at the time the blood test was performed on the sample; depending on the results of the blood test, any additional retesting could have further incriminated Gitre. The mere possibility that the evidence could have exculpated Gitre is insufficient to violate his due process rights. (See Youngblood, supra, 488 U.S. at p. 57 [stating that due process is not violated by "the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant"].) Mere speculation as to the exculpatory value of the blood sample that was used—or any other sample that allegedly could have been obtained—is inadequate to establish a due process violation. (People v. Alexander (2010) 49 Cal.4th 846, 878-879; accord, People v. Cook (2007) 40 Cal.4th 1334, 1349 [rejecting the defendant's due process claim where the defendant failed to show that the missing material actually contained possibly exculpatory evidence].)
Second, Gitre's due process rights were not violated by the prosecution's failure to preserve a sufficient portion of the sample to allow for retesting by the defense. "When a piece of evidence in the possession of the prosecution is destroyed because the prosecution finds it necessary to consume the evidence in order to test it, there is no due process violation." (People v. Griffin (1988) 46 Cal.3d 1011, 1021 (Griffin).) Moreover, the prosecution is not required to collect and preserve every item of evidence that might eventually prove useful to the defense. (People v. Montes (2014) 58 Cal.4th 809, 837.)
Gitre implies on appeal that the prosecution's failure to preserve enough of the first blood sample violates title 17, without citing which regulation was allegedly violated. However, section 1219.1 of title 17 does not require the state to ensure the sample size is sufficient for a defendant's retesting. (Id., subd. (f) & (f)(2).) The regulation specifies: "(f) In order to allow for analysis by the defendant, the remaining portion of the sample shall be retained for one year after the date of collection. [¶] . . . [¶] (2) Whenever a sample is requested by the defendant for analysis and sufficient sample remains, the forensic laboratory, law enforcement agency, or coroner/medical examiner's office in possession of the original sample shall continue such possession, but shall provide the defendant with a portion of the remaining sample in a clean container together with a copy or transcript of the identifying information carried on the original sample container." (Ibid., italics added.) Regardless, the existence or absence of a title 17 violation is not dispositive of the issue before us.
As noted ante, the police did try to obtain another blood sample from Gitre but he refused to provide his consent.
Finally, Gitre is unable to establish any bad faith on the part of the police or the prosecution when the sample was collected and tested. The police did not complete the first blood draw because Gitre declined a chemical test; instead, police obtained the blood sample taken by the hospital phlebotomist at around 2:30 p.m. There was no evidence to suggest that the failure to preserve a sufficient amount of the blood sample for additional testing was undertaken as part of any calculated effort that would indicate bad faith. (Trombetta, supra, 467 U.S. at p. 488 [finding no constitutional violation where "record contain[ed] no allegation of official animus towards [the defendant] or of a conscious effort to suppress exculpatory evidence"]; see also People v. Houston (2005) 130 Cal.App.4th 279, 302 [no due process violation where law enforcement's consumption of sample to conduct DNA test was not in bad faith]; People v. Roybal (1998) 19 Cal.4th 481, 509-510 [loss of evidence as a result of inadvertent error by the police was insufficient to establish bad faith].) The reason a limited blood sample remained was because the criminalist used the sample to perform the initial tests—as she was permitted to do under the law. (Griffin, supra, 46 Cal.3d at pp. 1021-1022.)
For all these reasons, Gitre's trial counsel was not ineffective for failing to object on due process grounds.
II. Evidence of Great Bodily Injury
Gitre argues that the three-year enhancement on his sentence for infliction of great bodily injury was not supported by substantial evidence. (Pen. Code, § 12022.7, subd. (a).) We reject Gitre's claim given the ample evidence of great bodily injury to S.M.
A. Additional Background
Dr. Frey testified that when S.M. arrived at the hospital, she had multiple abrasions and contusions, ruptured breast implants, and evidence of trauma due to a punctured lung and a collapsed lung, which resolved on its own. S.M. testified that she suffered pain in her neck and back at a level of 10 out of 10 immediately following the collision, that the pain worsened during her ambulance ride to the hospital, and that her pain level remained at a level of 10 during her three-day hospital stay, even though she was receiving intravenous pain medication. Following her release from the hospital, S.M. completed six weeks of physical therapy and continued to experience pain. S.M. performed physical therapy exercises independently for an additional two months. At the time of trial, more than 10 months after the collision, she continued to experience periodic neck pain and discomfort when sleeping because she was not able to replace her ruptured breast implants.
B. Legal Principles and Analysis
"We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction." (People v. Wilson (2008) 44 Cal.4th 758, 806.) "In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
Whether a victim has suffered physical harm that amounts to great bodily injury is a factual inquiry the jury must resolve. (People v. Cross (2008) 45 Cal.4th 58, 64 (Cross).) "If there is sufficient evidence to sustain the jury's finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding." (People v. Escobar (1992) 3 Cal.4th 740, 750 (Escobar).)
Penal Code section 12022.7, subdivision (f) defines "great bodily injury" as "significant or substantial physical injury." Evidence of great bodily injury "that is significant or substantial within the meaning of [Penal Code] section 12022.7—is commonly established by evidence of the severity of the victim's physical injury, the resulting pain, or the medical care required to treat or repair the injury." (Cross, supra, 45 Cal.4th at p. 66.) There is "no specific requirement that the victim suffer 'permanent,' 'prolonged' or 'protracted' disfigurement, impairment, or loss of bodily function." (Escobar, supra, 3 Cal.4th at p. 750.) Moreover, "some physical pain or damage, such as lacerations, bruises, or abrasions is sufficient for a finding of 'great bodily injury.' " (People v. Washington (2012) 210 Cal.App.4th 1042, 1047, citing People v. Jaramillo (1979) 98 Cal.App.3d 830, 836-837.)
We reject Gitre's contention that the evidence was insufficient to support the great bodily injury enhancement. The record shows S.M. had multiple contusions and abrasions and suffered great pain as a result of the collision, spending three days in the hospital receiving treatment for a lung tear, a partially collapsed lung, and ruptured breast implants. S.M. reported that she suffered severe pain, rating it a 10 out of 10 even when receiving intravenous painkillers. S.M. was still in physical pain more than six weeks after the collision, and she continued to suffer discomfort resulting from her unrepaired, ruptured breast implants. This type of evidence is sufficient to support a finding of great bodily injury. (See, e.g., People v. Le (2006) 137 Cal.App.4th 54, 58 [evidence sufficient where bullet lodged in right thigh, victim was released from hospital within 24 hours after bullet was removed, but had ongoing pain and difficulty walking]; People v. Hale (1999) 75 Cal.App.4th 94, 108 [broken teeth, split lip, and cut underneath eye sufficient]; People v. Bustos (1994) 23 Cal.App.4th 1747, 1755 [abrasions, lacerations, and contusions sufficient]; Escobar, supra, 3 Cal.4th at p. 750 [bruises and abrasions, stiff neck, and soreness impairing ability to walk were sufficient evidence of great bodily injury].)
Gitre argues that Dr. Frey's testimony establishes that S.M.'s injuries were "slight" and "not life-threatening." Dr. Frey never characterized S.M.'s injuries as "slight" during his testimony. Even if this were an accurate conclusion to reach based on the totality of Dr. Frey's testimony, the jury was also free to reject such a claim in favor of S.M.'s description of her injuries, and we do not reweigh the evidence. (People v. Barnwell (2007) 41 Cal.4th 1038, 1052 [When assessing a challenge asserting no substantial evidence, "[e]ven when there is a significant amount of countervailing evidence, the testimony of a single witness that satisfies the standard is sufficient to uphold the finding."].) Nor are we persuaded by Gitre's citation to cases involving victims who were more "vulnerable," or cases in which the victims' injuries were allegedly more severe than those inflicted here. Considering the seriousness of S.M.'s injuries, the medical care required to treat her, and the severe pain she suffered, we find that the evidence amply supports the jury's finding of great bodily injury.
III. Prior Serious Felony
Gitre contends that a 1990 Michigan burglary conviction cannot provide a basis for a strike under California's Three Strikes law because the elements for the felony in Michigan allegedly do not match the elements required for a California serious felony at the time of the prior conviction. We disagree.
A. Additional Background
At a bench trial on the issue of prior convictions, the prosecution presented evidence that in 1990 Gitre pleaded guilty in Michigan to felony breaking and entering an occupied dwelling with the intent to commit larceny therein. The prosecution also submitted evidence that Gitre admitted that the 1990 conviction was a serious prior felony under Penal Code section 667, subdivision (a)(1), which defense counsel challenged. The court found the serious felony and strike allegation to be true. The court struck the prior strike conviction that was based on the 1990 Michigan conviction and imposed a five-year prior serious felony enhancement for the Michigan conviction, pursuant to Penal Code section 667, subdivision (a)(1).
B. Legal Principles and Analysis
On appeal, we apply the substantial evidence test and review the record in the light most favorable to the trial court's findings. (People v. Fielder (2004) 114 Cal.App.4th 1221, 1232.) The test is "whether a reasonable trier of fact could have found that the prosecution sustained its burden of proving the enhancement beyond a reasonable doubt." (Ibid.) The prosecution has the burden of proving each element. (People v. Williams (1990) 222 Cal.App.3d 911, 915.) The trier of fact can look at the entire record of the prior foreign conviction, but if no facts of the offense actually committed are disclosed on the record, a court presumes the prior conviction was for the "least offense punishable under the foreign law." (People v. Guerrero (1988) 44 Cal.3d 343, 354-355.)
The 1990 Michigan felony was for breaking and entering an occupied dwelling with intent to commit the crime of larceny therein, in violation of Michigan law. An essential element of larceny under the Michigan law at the time of the offense was the felonious intent to deprive the owner permanently of his or her property. (People v. Kyllonen (1978) 402. Mich. 135, 148, fn. 14 [262 N.W.2d 2, 7, fn. 14]; People v. Wilbert (Mich.Ct.App. 1981) 307 N.W.2d 388, 392; People v. Goodchild (Mich.Ct.App. 1976) 242 N.W.2d 465, 468.) Michigan courts have defined the intent to permanently deprive as including an intent to temporarily deprive by showing a " ' "lack of purpose to return the property with reasonable promptitude and in substantially unimpaired condition." ' " (People v. Jones (Mich.Ct.App. 1980) 296 N.W.2d 268, 271.) Similarly, in California, the intent to deprive permanently is satisfied by the intent to deprive temporarily but for an unreasonable time so as to deprive the person "of a major portion of its value or enjoyment." (People v. Avery (2002) 27 Cal.4th 49, 55 (Avery); Pen. Code, § 459.)
In Gitre's opening brief, he focused on purported distinctions between Michigan's requirement of "substantial" impairment and California's "major portion" test. When the People responded that these requirements have been interpreted to have the same meaning, Gitre argued for the first time in his reply brief that the law in Michigan is materially different because of the "promptness component." We are not persuaded by Gitre's first argument, and he has waived the second one.
The Court of Appeal in People v. Reynolds (1989) 211 Cal.App.3d 382 (Reynolds) compared the California and Michigan larceny statutes, found that both required an intent to permanently deprive the owner of property, and concluded that the California and Michigan statutes were "identical in all essential respects." (Id. at pp. 387-388.) The California Supreme Court has stated that the phrase—to "permanently" deprive the owner of property as required under California law—should not be interpreted literally. (People v. Davis (1998) 19 Cal.4th 301, 307.) The intent to deprive permanently is satisfied "by the intent to deprive temporarily but for an unreasonable time so as to deprive the [owner] of a major portion of its value or enjoyment." (Avery, supra, 27 Cal.4th at p. 58.) Similarly, the intent element in Michigan is met by showing a " ' "lack of purpose to return the property . . . in substantially unimpaired condition." ' " (Jones, supra, 296 N.W.2d at p. 271.)
We reject Gitre's claim that there is any meaningful difference between "substantial" impairment under Michigan law and the intent element for theft-related offenses under California law. In People v. Bacon (2010) 50 Cal.4th 1082 (Bacon), the court considered an Arizona statute that defined the intent to permanently deprive as including the intent to withhold the property " 'for so long a time period that a substantial portion of its economic value or usefulness or enjoyment is lost." (Id. at p. 1117, italics added.) The court concluded the Arizona intent element had the same meaning as under California law. (Ibid.) Moreover, we have already rejected efforts to distinguish an intent to deprive a property owner of a "substantial"—versus a "major"—portion of the property's value. (People v. Mumm (2002) 98 Cal.App.4th 812, 818-819, fn. 5.) Gitre provides no convincing reason to reach a different outcome in this case.
Construing the terms in accordance with their usual and ordinary meaning further supports our decision. (See People v. Scott (2014) 58 Cal.4th 1415, 1421.) The Oxford Dictionary defines "substantial" as an adjective meaning, "1. Of considerable importance, size, or worth." (The English Oxford Dictionary <https://en.oxforddictionaries.com/definition/substantial> [as of Mar. 22, 2018].) Similarly, it defines "major" as an adjective meaning, "1. [attributive] Important, serious, or significant." (The English Oxford Dictionary <https://en.oxforddictionaries.com/definition/us/major> [as of Mar. 22, 2018].) The words "substantial" and "major" both connote something of import as their primary definition.
As noted ante, Gitre makes the argument for the first time in his reply brief that Michigan law in 1990 was different from California law because Michigan case law explicitly referenced an intent to deprive by not returning with "reasonable promptitude," while California case law did not include similar language. Because Gitre raised this issue for the first time in his reply brief we decline to address it (People v. Adams (1990) 216 Cal.App.3d 1431, 1441, fn. 2), other than to note it lacks merit. California courts have considered the length of deprivation in relation to the nature of the stolen item, allowing for varying degrees of intended promptness in return based on the nature and quality of the stolen object. (See Avery, supra, 27 Cal.4th at p. 55 [noting that intent to steal is measured by the nature of the property so that a temporary taking deprives the owner of economic value]; cf. People v. MacArthur (2006) 142 Cal.App.4th 275, 280 [explaining the intended deprivation needed to be for a "sufficiently extended period" when jewelry was taken to a pawn shop].) In addition, we again conclude the two intent requirements are equivalent in all material respects. "Both statutes require an intent to deprive the owner of possession of his or her property either permanently or for an unreasonable length of time, or an intent to deal with the owner's property in such a way that there is a substantial risk of permanent loss." (Mumm, supra, 98 Cal.App.4th at p. 819.) If a defendant lacks the purpose to return property "with reasonable promptitude" (satisfying the Michigan intent requirement), we fail to see how that is different from an intent to deprive the owner of possession "for an unreasonable length of time" (satisfying the California intent requirement).
Because there is substantial evidence supporting the court's conclusion that the Michigan conviction was the equivalent of a serious felony conviction under California law at the time of the offense, we find no error.
Gitre raised an additional issue on appeal, noting that the abstract of judgment was inconsistent with the oral pronouncement of sentence. It is not necessary for us to address this issue because the trial court subsequently issued an amended pronouncement of judgment that reflects its oral pronouncement of sentence.
DISPOSITION
The judgment is affirmed.
GUERRERO, J. WE CONCUR: NARES, Acting P. J. AARON, J.