Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, John Fisher, Judge, Super. Ct. No. LA053941
Sharon Fleming, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
INTRODUCTION
Appellant contends that the prosecution failed to prove beyond a reasonable doubt that his 2005 Iowa robbery conviction qualifies as a serious felony -- or “strike” -- under the “Three Strikes Law.” We agree and remand for a new trial on the prior conviction.
BACKGROUND
Appellant was charged with car theft in violation of Vehicle Code section 10851, subdivision (a). The information specially alleged that on August 19, 2005, appellant had suffered a prior conviction of a serious or violent felony or juvenile adjudication, for purposes of sentence enhancement under Penal Code section 667, subdivisions (b) through (i), and section 1170.12, subdivisions (a) through (d) -- the Three Strikes Law. The prior conviction was alleged to have been a violation of Iowa Code section 711.3, second degree robbery.
All further references to California statutes are to the Penal Code, unless otherwise indicated.
On the date set for trial, appellant’s pretrial Romero motion to strike the prior conviction was denied. Appellant pled no contest to the charge, but not to the prior conviction allegation, to which appellant objected on the ground that it was not a serious felony, and thus did not qualify as a strike. The trial court heard the prosecutor’s evidence regarding the Iowa conviction, which consisted of several documents, all submitted together as exhibit 1. Included in the exhibit were several police reports, which were separated from the other documents and marked exhibit 1-A after appellant objected to them. The remainder of exhibit 1 consisted of certified copies of documents from Iowa’s Blackhawk County District Court case No. FECR132291. Appellant did not object to the authenticity of the document entitled, “Complaint,” but objected to the facts recited in the document, on the grounds of relevance and hearsay. Other documents in exhibit 1 were the “Trial Information,” “Order re: Guilty Plea,” “Order for Prison Sentence,” “Order” (granting a motion for reconsideration and resentencing appellant), “Arrest Warrant” (probation violation) and a juvenile fingerprint record.
See section 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Although the prosecutor stipulated to the exclusion of the police reports, they have been made part of the record on appeal.
The information alleges, and the trial court found, that the Iowa conviction occurred in case No. CO1313601. However, on the exhibits submitted to prove the conviction, the Iowa case number is FECR132291, not CO1313601. This appears to be a clerical error that the trial court should correct upon remand.
The trial judge noted appellant’s objections, stating that he would look only to the fact of the conviction without considering the underlying facts, which he found unnecessary to the determination whether the Iowa offense was a serious felony. The court found true the allegation that appellant had suffered the prior conviction and that it qualified as a strike under section 1170.12, subdivisions (a) through (d). The court sentenced appellant to 32 months in prison, consisting of the low term of 16 months, doubled as a second strike. Appellant timely filed a notice of appeal.
DISCUSSION
Appellant’s sole contention on appeal is that no substantial evidence supported the trial court’s finding that the Iowa conviction qualified as a strike under California law.
Under California’s Three Strikes Law, the sentence upon conviction of a current offense is enhanced for persons who have been previously convicted of a strike -- a violent felony, as defined in section 667.5, subdivision (c), or a serious felony, as defined in section 1192.7, subdivision (c). (§§ 667, subd. (f)(1), 1170.12, subd. (d)(1).) In California, robbery is a serious felony, and therefore qualifies as a strike. (§§ 1192.7, subd. (c)(19), 667, subd. (a)(1), (4).) Appellant’s Iowa conviction was for second degree robbery.
“‘In order for a prior conviction from another jurisdiction to qualify as a strike under the Three Strikes law, it must involve the same conduct as would qualify as a strike in California.’” (People v. Woodell (1998) 17 Cal.4th 448, 453 (Woodell).) A conviction in another jurisdiction will qualify as a strike if the statutory elements of the foreign crime include all of the elements of the predicate California felony. (People v. Guerrero (1988) 44 Cal.3d 343, 348 (Guerrero).) “There is . . . no guarantee the statutory definition of the crime in the other jurisdiction will contain all the necessary elements to qualify as a predicate felony in California.” (Woodell, supra, at p. 453.) Thus, “‘in determining the truth of a prior-conviction allegation, the trier of fact may look to the entire record of the conviction.’” (Id. at p. 452, quoting Guerrero, at p. 355 .) “To allow the trier to look to the record of the conviction -- but no further -- . . . effectively bars the prosecution from relitigating the circumstances of a crime committed years ago and thereby threatening the defendant with harm akin to double jeopardy and denial of [a] speedy trial.” (Id. at p. 453, quoting Guerrero, at p. 355.) The power of the trier of fact to consider the evidence within the record of the foreign conviction extends only to such evidence as is not precluded by the rules of evidence or other statutory limitation. (People v. Myers (1993) 5 Cal.4th 1193, 1201.)
1. The Iowa Statute Lacks Elements of the California Robbery Statute
In California, robbery is defined as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.) The taking may be brief and consist of the movement of the property by the victim, so long as the defendant acquired dominion over the property. (People v. Hill (1998) 17 Cal.4th 800, 852-853; People v. Duran (2001) 88 Cal.App.4th 1371, 1377.) However, “‘the property must be removed from the possession [or constructive possession] and immediate presence of the victim against his will, and such removal must be by force or fear.’ [Citations.]” (People v. Nguyen (2000) 24 Cal.4th 756, 761 (Nguyen).) “The taking element of robbery itself has two necessary elements, gaining possession of the victim’s property and asporting or carrying away the loot. [Citation.]” (People v. Cooper (1991) 53 Cal.3d 1158, 1165.)
In Iowa, robbery is defined as follows:
“A person commits a robbery when, having the intent to commit a theft, the person does any of the following acts to assist or further the commission of the intended theft or the person’s escape from the scene thereof with or without the stolen property:
“1. Commits an assault upon another.
“2. Threatens another with or purposely puts another in fear of immediate serious injury.
“3. Threatens to commit immediately any forcible felony.
“It is immaterial to the question of guilt or innocence of robbery that property was or was not actually stolen.” (Iowa Code, § 711.1.)
“A person commits robbery in the first degree when, while perpetrating a robbery, the person purposely inflicts or attempts to inflict serious injury, or is armed with a dangerous weapon.” (Iowa Code, § 711.2.) “All robbery which is not robbery in the first degree is robbery in the second degree.” (Iowa Code, § 711.3.)
A violation of Iowa Code section 711.1 would not have been robbery at common law or under prior Iowa law. (State v. Pierce (Iowa 1980) 287 N.W.2d 570, 573-574.) Robbery may be committed in Iowa without the taking of property. (Id. at p. 574; see also Nguyen, supra, 24 Cal.4th at p. 763, fn. 4; State v. Boley (Iowa 1990) 456 N.W.2d 674, 679; State v. Rich (Iowa 1981) 305 N.W.2d 739, 746 [“To commit robbery one need only have the intent to commit theft; there is no requirement that theft actually be committed”].) As no taking is required under Iowa law, it follows that robbery may be committed in Iowa without the taking of property from the immediate presence of the victim. Thus, because robbery under the Iowa statute lacks essential elements of robbery under California law, the prosecution bore the burden to prove beyond a reasonable doubt that appellant’s conduct in committing the Iowa offense was, in substance, the conduct required to satisfy the elements of robbery under California law. (See People v. Rodriguez (2004) 122 Cal.App.4th 121, 129-130 [proof required where Texas robbery statute lacked taking element of California robbery statute].)
2. The Iowa Record of Conviction Lacks Admissible Evidence of the Circumstances of the Crime
The only document in evidence reciting the facts of the crime was the complaint filed by police investigator M.L. Rasmussen approximately one week before the information, attesting to Rasmussen’s belief that appellant had violated Iowa Code section 711.3. The complaint alleged that appellant committed a robbery in the second degree, in that he committed an assault and caused injury while harboring the intent to commit a theft. The complaint included a sworn statement by Rasmussen regarding the facts of the crime, prefaced by the words: “I, the undersigned, being first duly sworn and under oath, state that the following facts known by me or told to me by other reliable person[s] form the basis for my belief that . . . the Defendant committed the crime charged. . . .” Rasmussen also stated: “During an interview, the defendant confessed to . . . striking the victim and stealing her purse from her vehicle as it was parked in the car wash stall.”
Appellant compares the police complaint in his case with the complaint application excluded in Shepard v. United States (2005) 544 U.S. 13, in which the United States Supreme Court held that under the Armed Career Criminal Act, evidence of the conduct underlying a prior conviction was limited to “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” (See id. at p. 26.) California courts have refused to apply Shepard in the context of California’s Three Strikes Law, as it raised questions solely of federal statutory interpretation. (See, e.g., People v. Towers (2007) 150 Cal.App.4th 1273, 1276; People v. Gonzales (2005) 131 Cal.App.4th 767, 775.)
Appellant objected to the statements in the complaint as hearsay. “The normal rules of hearsay generally apply to evidence admitted as part of the record of conviction to show the conduct underlying the conviction. [Citation.]” (Woodell, supra, 17 Cal.4th at p. 458.) As Rasmussen did not identify the declarants or state that he or she was a percipient witness to the crime or confession, the statement is hearsay, and may not be considered. (See ibid; People v. Reed (1996) 13 Cal.4th 217, 230 (Reed) [hearsay excerpts from probation officer’s statement].)
Respondent contends that the complaint is the accusatory pleading, and appellant’s guilty plea constitutes an admission of the facts recited in it. Appellant counters that the police complaint preceded the information, and that the latter is therefore the operative charging document. As further noted by appellant, regardless of whether the police complaint qualifies as a charging document, there is no evidence that appellant pled to the charge as alleged in either the police complaint or the information. Unless the charging document recites the facts and the defendant pled to the crime “as charged,” the charging document is insufficient proof of the conduct underlying the conviction. (Reed, supra, 13 Cal.4th at p. 224; cf. People v. Moenius (1998) 60 Cal.App.4th 820, 825 [guilty plea to residential burglary, as alleged in the information, sufficient to show elements of California burglary].)
The “Trial Information” alleged only that appellant did “[c]ommit [r]obbery in the second degree upon Roberta Dybevik; contrary to and in violation of Sections 711.1 and 711.3 of the Iowa Criminal Code.”
The only evidence of appellant’s plea was an order reciting that appellant entered a factual basis guilty plea. By court rule in Iowa, the trial court must determine the factual basis for a guilty plea. (Iowa Rules of Crim. Proc., rule 2.8(2).) Here, the “Order re: Guilty Plea” recites that the court found a factual basis for appellant’s plea, but does not recite the facts forming such basis or state what the court considered in determining a factual basis. Nor is the factual basis set forth anywhere else in the record. The information, signed by the prosecutor is subscribed by a judge as approving the information upon finding probable cause, based upon the “Minutes of Evidence.” Rule 2.5(3) of the Iowa Rules of Criminal Procedure, requires the prosecuting attorney to submit minutes of evidence, consisting of a list of witnesses and their expected testimony. Although the information recites that the “Minutes of Testimony” are attached, no such document appears in the record.
Respondent suggests that we take judicial notice of several pending California cases in which both the complaint and the information have been made part of the record on appeal, in order to show that complaints can be part of a record of conviction. As we have determined that the complaint was insufficient evidence of the conduct underlying the Iowa conviction, its inclusion in the record is irrelevant. The request is denied. (See Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 [denying judicial notice of irrelevant materials], overruled on another point in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1275-1276.)
Respondent contends that the portion of Rasmussen’s statement in the complaint describing appellant’s confession may be considered as a party admission. (See, e.g., Evid. Code, § 1220.) As Rasmussen does not state that the confession was made to him or her personally, the statement does not qualify under that exception. (Reed, supra, 13 Cal.4th at p. 230.) Respondent asks that we look to the excluded police reports in which Rasmussen stated that he or she interviewed appellant. Respondent’s attempt to rely on the police reports to show Rasmussen was the interviewer fails for two reasons. First, the reports were not in evidence, and second, the assertion that Rasmussen was the interviewer is itself hearsay.
Moreover, there has been no showing that the police reports were ever before the Iowa trial court. An inquiry into the conduct underlying the offense to which a defendant pled guilty “does not contemplate that the court will make an independent determination regarding a disputed issue of fact relating to the defendant’s prior conduct.” (People v. McGee (2006) 38 Cal.4th 682, 706, citing Woodell, supra, 17 Cal.4th at p. 460.) Evidence of a prior felony is limited to the record of conviction, which consists only of the records of the convicting court -- and the appellate court if there was an appeal. (See Woodell, at p. 454 [record of conviction includes items that would have been properly considered on appeal of the prior conviction]; Draeger v. Reed (1999) 69 Cal.App.4th 1511, 1520-1521 [foreign DUI conviction].) Here, as no evidence suggests that the Iowa court considered the police reports or that they were even before that court, they are not part of the record of conviction. (See Woodell, at pp. 452-453.) Thus, as the prosecutor apparently recognized when he withdrew the police reports from evidence, the People could not rely on them to prove the circumstances of the underlying crime. (See Reed, supra, 13 Cal.4th at p. 225.) We conclude that the circumstances of the underlying crime do not appear in the Iowa record of conviction.
3. Attempted Robbery was not the Least Punishable Offense
“[W]hen the record does not disclose any of the facts of the offense actually committed, the court will presume that the prior conviction was for the least offense punishable under the foreign law.” (Guerrero, supra, 44 Cal.3d at p. 355.) Respondent contends that the least punishable offense under Iowa Code sections 711.1 and 711.3 was attempted robbery, which would qualify as a serious felony in California. We agree that attempted robbery would qualify as a serious felony in California. (See § 1192.7, subd. (c)(19) & (39).) However, we do not agree that the least punishable offense under the Iowa statute would necessarily amount to attempted robbery under California law.
In California, “[a]n attempted robbery requires a specific intent to commit robbery and a direct, ineffectual act (beyond mere preparation) toward its commission. [Citations.]” (People v. Medina (2007) 41 Cal.4th 685, 694; People v. Vizcarra (1980) 110 Cal.App.3d 858, 861.) An intent to rob is an intent to steal by means of force or fear. (People v. Bradford (1997) 14 Cal.4th 1005, 1055-1056.) Thus, in California, an attempted robbery is not committed by a person who merely intends to steal without the use of force or fear. (Cf. People v. Dillon (1983) 34 Cal.3d 441, 452, 455-456 [carrying firearms knowing those guarding the property will be armed shows more than a mere attempt to steal].) Further, robbery is distinguished from ordinary theft by the taking of property from the actual or constructive possession of the victim. (Nguyen, supra, 24 Cal.4th at p. 764.) Thus, a person may not be convicted of robbery in California, unless the use of force or fear is applied against the person with some possessory interest in the stolen property. (People v. Jenkins (2006) 140 Cal.App.4th 805, 812 (Jenkins); People v. Galoia (1994) 31 Cal.App.4th 595, 597-599 (Galoia); Sykes v. Superior Court (1994) 30 Cal.App.4th 479, 481, 484 (Sykes), cited with approval by the California Supreme Court in Nguyen, supra, 24 Cal.4th at pp. 760-761.) It follows that a conviction of attempted robbery must be predicated upon the attempted taking of property by means of force or fear from the person in actual or constructive possession of the property. (See Nguyen, at pp. 764-765.)
In Iowa, neither force nor fear is a required element of robbery. (State v. Johnson (Iowa 1983) 328 N.W.2d 918, 919; Iowa Code, § 711.1.) It may be committed by means of an assault, if the assault is intended to facilitate an escape from the scene of a theft or attempted theft. (Iowa Code, § 711.1(1); see State v. Pierce (Iowa 1980) 287 N.W.2d 570, 573 -574 [attempted theft].) An assault may be as simple as an unjustified act intended to result in insulting or offensive physical contact, with the apparent ability to carry out the act. (Iowa Code, § 708.1(1).) Moreover, there is no requirement in Iowa that the assault be committed upon the person in possession or constructive possession of property. An escape after a theft or attempted theft becomes robbery with the commission of “an assault upon another.” (Iowa Code, § 711.1(1).) We have found no Iowa case authority construing the term “another” to be limited to the person in possession or constructive possession of the property, and no language in the statute suggests or compels such a construction.
The statute distinguishes assault from force and fear by setting forth three ways in which a violation of Iowa Code section 711.1 may be committed: subsection 1 is committed by means of assault; subsection 2 is committed by means of fear; and subsection 3 is committed by means of force. The record of appellant’s Iowa conviction does not specify a subsection.
In Jenkins, a California court construed the phrase “‘against another’” in a Utah robbery statute, in order to determine its least punishable offense. (Jenkins, supra, 140 Cal.App.4th at p. 811.) At the time of the offense, one of Utah’s two definitions of robbery was “‘intentionally or knowingly us[ing] force or fear . . . against another in the course of committing a theft.’ [Citation.]” (Ibid.) Because the court’s research revealed no construction of “another” as one with a possessory interest, it agreed with the appellant that in Utah, “a defendant could be convicted of robbery if he stole the property of one person without the use of force or fear, but used force or fear against a second person without any possessory interest in the property during his flight from the scene of the theft.” (Id. at p. 811.) We agree with the reasoning of Jenkins, and come to the same conclusion in construing the Iowa statute.
Further, unlike the Utah statute, the Iowa statute requires no theft. Thus, a defendant could be convicted of robbery in Iowa if he intended but failed to steal the property of one person without the use of force, fear or an assault upon that person, but committed a simple assault against a second person -- one without any possessory interest in the property -- as he fled the scene of the attempt. A completed theft would not be robbery under such circumstances in California. (Galoia, supra, 31 Cal.App.4th at pp. 597-599; Sykes, supra, 30 Cal.App.4th at pp. 481, 484.) It follows that an attempt to steal under such circumstances would not be attempted robbery.
Thus, we conclude that the prosecution did not meet its burden to establish that appellant’s conviction under Iowa Code section 7.11.1 qualifies as a serious or violent felony in California. Accordingly, we remand for retrial or resentencing. (See People v. Monge (1997) 16 Cal.4th 826, affd sub nom. Monge v. California (1998) 524 U.S. 721; People v. Jones (1999) 75 Cal.App.4th 616, 635.)
DISPOSITION
The true finding as to the strike allegation is reversed, and the matter is remanded to the trial court for retrial of this issue in a manner consistent with this opinion. In the event the prior serious felony allegation is not proved beyond a reasonable doubt, appellant shall be resentenced. In all other respects, the judgment is affirmed.
We concur:WILLHITE, Acting P. J., SUZUKAWA, J.