Opinion
F076041
12-11-2018
THE PEOPLE, Plaintiff and Respondent, v. JESUS ALEJANDRE MURILLO, Defendant and Appellant.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Carry and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF165403A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge. Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Carry and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Smith, J. and Meehan, J.
-ooOoo-
A jury convicted appellant Jesus Alejandre Murillo of lewd and lascivious conduct with a child under the age of 14 (Pen. Code, § 288, subd. (a)/count 1), sexual intercourse with a child under the age of 16 (§ 261.5, subd. (d)/count 2), and attempted sodomy with a child under the age of 16 (§§ 664 & 286, subd. (b)(2)/count 3). In a separate proceeding, the court found true a serious felony enhancement (§ 667, subd. (a)(1)) and allegations that Murillo had a prior conviction within the meaning of the "Three Strikes" law (§ 667, subds. (b)-(i)).
All statutory references are to the Penal Code.
On July 26, 2017, the trial court sentenced Murillo to an aggregate prison term of 16 years 8 months, a doubled upper term of 16 years on count 1, a consecutive eight-month term on his conviction in count 3, and a stayed term on count 2.
On appeal, Murillo contends the evidence is insufficient to support the court's true finding that his 2010 conviction for assault by means of force likely to produce great bodily injury and/or with a deadly weapon (former § 245, subd. (a)(1)) was a strike conviction. We find merit to this contention, vacate Murillo's sentence, and remand for further proceedings. In all other respects, we affirm.
FACTS
The facts of the underlying offense are omitted because they are not germane to the issue Murillo raises.
In 2010, as a juvenile Murillo was adjudicated of violating former section 245, subdivision (a)(1), which at the time made unlawful an assault by force likely to cause great bodily injury or with a deadly weapon.
During the hearing on the prior conviction allegations, the prosecutor introduced several documents to prove that Murillo's 2010 assault adjudication was a serious felony, including a copy of the 2010 petition filed on January 21, 2010, in case No. 119018-01, that charged him with that offense. The petition alleged: "ON OR ABOUT JANUARY 17, JESUS MURILLO, DID WILLFULLY AND UNLAWFULLY COMMIT AN ASSAULT UPON J. FLORES, BY MEANS OF FORCE LIKELY TO PRODUCE GREAT BODILY INJURY AND/OR WITH A DEADLY WEAPON, TO WIT: A KNIFE, IN VIOLATION OF ... SECTION 245[, subdivision] (a)(1) A FELONY." (Italics added.) The documents also contained a minute order for the change of plea hearing in that case that stated, "COUNT 1 OF THE 01 PETITION FILED 1/21/2010 IS ADMITTED." Based on these documents, the court found the prior conviction true.
Although count 1 of the petition also alleged that the offense charged in that count was a serious felony, the minute order did not indicate that Murillo admitted the allegation or that the court found it to be true. Therefore, the allegation was "in essence dismissed." (People v. Leslie (1996) 47 Cal.App.4th 198, 204.)
DISCUSSION
Murillo contends the documents the prosecutor introduced to prove the Three Strikes allegation showed only that he admitted a violation of former section 245, subdivision (a)(1), and thus were insufficient to prove he was adjudicated for a serious felony. Respondent contends the reference in count 1 of the petition to a knife was sufficient to sustain the court's true finding. We agree with appellant.
In 2010, when Murillo was adjudicated of violating section 245, subdivision (a)(1), that statute made it a felony to "commit[ ] 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[.]" (Stats. 2004, ch. 494, § 1, p. 3140.)
In 2011 the Legislature amended section 245 to remove from subdivision (a)(1), the language making it a felony to assault a person by means of force likely to cause great bodily injury (GBI) and placing that language in the newly added subdivision (a)(4). (Stats. 2010, ch. 178, § 53, p. 769.) --------
" '[A]ssault with a deadly weapon' is a serious felony. [Citation.] On the other hand, while serious felonies include all those 'in which the defendant personally inflicts great bodily injury on any person' [citation],
assault 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 [former] section 245[, subdivision] (a)(1) is a serious felony, but a conviction under the GBI prong is not.
"The People must prove each element of an alleged sentence enhancement beyond reasonable doubt. [Citation.] Where, as here, the mere fact that a prior conviction occurred under a specified statute does not prove the serious felony allegation, otherwise admissible evidence from the entire record of the conviction may be examined to resolve the issue. [Citations.]
"A common means of proving the fact and nature of a prior conviction is to introduce certified documents from the record of the prior court proceeding and commitment to prison, including the abstract of judgment describing the prior offense. [Citations.]
" '[The] trier of fact is entitled to draw reasonable inferences from certified records offered to prove a defendant suffered a prior conviction ....' " (People v. Delgado (2008) 43 Cal.4th 1059, 1065-1066 (Delgado).)
In Delgado, the abstract of judgment used to prove the defendant's prior conviction identified the conviction as " 'PC' '245(A)(1)' then separately described the offense as 'Asslt w DWpn.' " (Delgado, supra, 43 Cal.4th at p. 1069.) In finding that the trial court could properly find beyond a reasonable doubt that a prior serious felony conviction had occurred, the court stated:
"This latter description tracks one, but only one, of the two specific, discrete, disjunctive, and easily encapsulated forms of aggravated assault set forth in section 245[, subdivision] (a)(1). Unlike [the one] at issue in [People v. Rodriguez (1998) 17 Cal.4th 253 (Rodriguez)], ... the instant abstract does not mention the other specific, discrete, and disjunctive form of section 245[, subdivision] (a)(1) violation, involving force likely to produce GBI. And unlike the abstract at issue in [People v. Williams (1996) 50 Cal.App.4th 1405], it does not simply cite the statute violated, without any reference to the underlying conduct. Any inference that this notation simply refers to the statute generally is thus sharply diminished." (Delgado, supra, 43 Cal.4th at p. 1069, italics added.)
In Rodriguez, to prove a prior strike allegation, the People presented an abstract of judgment that showed a plea of guilty in 1983 to a charge of violating former section 245, subdivision (a)(1), which then prohibited the " '[commission] [of and] 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.' " (Rodriguez, supra, 17 Cal.4th at p. 261.) The abstract of judgment identified the defendant's conviction as " 'ASLT GBI/DLY WPN.' " (Ibid.) In finding this notation insufficient to sustain the true finding on the strike allegation, the Supreme Court found that the notation proved nothing more than the least adjudicated elements of the charged offense and that the evidence supporting the strike allegation was thus insufficient. (Id. at p. 262.)
This case is more like Rodriguez than Delgado because the language in the 2010 petition tracks the language of the statute in effect then, with the exception of the phrase "to wit, a knife," and it is in the disjunctive. Because the language is in the disjunctive, the reference to a knife identifying the weapon alleged to have been used does nothing to clarify in what manner Murillo admitted committing the 2010 assault. In accord with Rodriguez, we conclude that the evidence was insufficient to support the court's true finding on the strike allegation.
DISPOSITION
The judgment is affirmed, except that Murillo's sentence is vacated, the true findings as to the allegations that appellant's 2010 adjudication for assault in violation of Penal Code section 245, subdivision (a)(1), is a serious felony within the meaning of the Three Strikes law is reversed, and the matter is remanded for a retrial as to those allegations. (People v. Sotello (2002) 94 Cal.App.4th 1349, 1356.)