Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F00457
CANTIL-SAKAUYE, J.
Defendant Michael Bradley Prindle was convicted by a jury of two counts of assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1) (hereafter section 245(a)(1)). Following a court trial, the trial court found true allegations that defendant had a prior strike conviction from 1992 (§§ 667, subds. (b)-(i), 1170.12) and had served a prior prison term for a 1999 conviction. (§ 667.5, subd. (b).) The trial court sentenced defendant to 11 years in state prison computed as follows: on count one - the middle term of three years doubled to six years pursuant to the three strikes law; on count two - one-third of the middle term doubled pursuant to the three strikes law to run consecutively; plus a consecutive five-year enhancement pursuant to section 667, subdivision (a), and a concurrent one-year enhancement pursuant to section 667.5, subdivision (b).
Undesignated statutory references are to the Penal Code.
See section II, post.
On appeal, defendant challenges the sufficiency of the evidence to support the trial court’s finding he had a prior serious felony conviction in 1992. We shall direct the correction of a minor clerical error in the abstract of judgment and otherwise affirm the judgment.
FACTUAL BACKGROUND
The facts underlying defendant’s offenses in this case are not relevant to the issue defendant raises on appeal. We note only defendant was escorted out of a bar after he was involved in an altercation inside the bar. He left, but returned to the bar a short time later. Defendant then got into an argument with the co-owner of the bar and ended up swinging a knife at both the co-owner and a bouncer.
DISCUSSION
I.
Defendant contends the evidence does not support the trial court’s finding that his 1992 conviction for assault in violation of section 245(a)(1) qualifies as a prior serious felony. In determining the nature of a prior conviction, a court “may look to the entire record of the conviction[, ]” which includes the accusatory pleading and defendant’s plea of guilty or nolo contendere. (People v. Guerrero (1988) 44 Cal.3d 343, 345, 355-356; see People v. Trujillo (2006) 40 Cal.4th 165, 177.)
As explained by the court in People v. Banuelos (2005) 130 Cal.App.4th 601 (Banuelos): “Section 667, subdivision (a) requires a five-year sentence enhancement when a defendant convicted of a ‘serious felony’ offense listed in section 1192.7, subdivision (c) has been previously convicted of a serious felony. Section 1170.12, subdivision (c), the Three Strikes law, provides for a doubled sentence when a defendant convicted of any felony has been previously convicted of a serious felony.” (Id. at p. 604.) Defendant agrees his current convictions are serious felonies and he is subject to both second strike sentences and the five-year enhancement if his 1992 conviction is similarly classified.
At the trial of the prior conviction allegation here, the prosecution introduced into evidence a copy of the information filed in San Bernardino County in October 1992, which charged defendant with count 1 as follows: “On or about September 13, 1992, in the County of San Bernardino, State of California, the crime of ASSAULT GREAT BODILY INJURY AND WITH DEADLY WEAPON, in violation of PENAL CODE SECTION 245(a)(1), a Felony, was committed by MICHAEL BRADLEY PRINDLE, who did willfully and unlawfully commit an assault upon Timothy Lee Malto with a deadly weapon, to wit, a bat, and by means of force likely to produce great bodily injury.” The information also contained an allegation that in the commission of such offense defendant personally inflicted great bodily injury on the victim, causing the offense to become a serious felony within the meaning of section 1192.7, subdivision (c)(8). Count 2 of the information charged defendant with first degree residential burglary in violation of section 459.
The prosecution introduced into evidence a declaration by defendant dated November 20, 1992, in which defendant indicated he wanted to change his not guilty plea to a guilty/nolo contendere plea to “count I P.C. 245 assault, great bodily injury” in exchange for a negotiated sentence and dismissal of the remaining count and the personal infliction of great bodily injury allegation. The prosecution also introduced an order of the same date accepting defendant’s guilty/nolo contendere plea, a minute order of judgment and sentencing dated April 9, 1993, indicating defendant was convicted of “Count 1, PC 245(A)(1) Assault w/deadly weapon, felony” (the court sentenced defendant in accordance with the plea and dismissed both count 2 and the great bodily injury enhancement allegation), an abstract of judgment filed in May 1993 setting forth defendant’s conviction in November 1992 of “PC 245(A)(1) ADW W/GBI, ” and a fingerprint card dated May 11, 1993, listing defendant’s offense as “CT1A, ASLT W/DW(245)A).”
The prosecution also submitted into evidence a reporter’s transcript of defendant’s change of plea proceedings. The transcript reflects that the trial court asked defendant if he understood he was charged in the information “with assault with great bodily injury, a violation of Penal Code Section 245(a)(1), as a felony[, ]” that there was also a great bodily injury allegation within the meaning of section 1192.7(c)(8) and that count 2 charged him with first degree residential burglary. Defendant said he understood the charges and answered “yes” when the court asked him if it was his desire to enter a plea of guilty “to Count 1, the assault with great bodily injury, Penal Code 245(a)(1), as a felony[.]” The trial court advised defendant of his constitutional rights and obtained his personal waiver of those rights. The court stated the terms of the plea agreement, which included the dismissal of count 2 and the striking of the great bodily injury allegation. After further advice and waivers, the trial court asked defendant how he pled “[t]o the charge as set forth in Count 1 of the Information, assault with great bodily injury, violation of Penal Code Section 245(a)(1), as a felony[.]” Defendant responded: “Guilty.”
Defendant contends these materials do not contain sufficient evidence his prior assault conviction qualifies as a serious felony under section 1192.7, subdivision (c), because he did not specifically admit he personally used a deadly weapon, did not admit he personally inflicted great bodily injury and the great bodily injury allegation was dismissed pursuant to his plea bargain. We conclude sufficient evidence supports the trial court’s finding that defendant’s 1992 conviction qualifies as a serious felony.
Section 245(a)(1), prohibits the “commi[ssion] [of] 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 . . . .” (Italics added.)
Prior to the passage of Proposition 21 in 2000, section 1192.7 did not list section 245 among the crimes enumerated as serious felonies and a conviction under section 245(a)(1) could qualify as a prior serious felony only if the defendant “personally inflicted great bodily injury on any person, other than an accomplice, ” “personally used a firearm, ” or “personally used a dangerous or deadly weapon.” (§ 1192.7, subd. (c)(8) & (23); see Stats. 1993, c. 611, §§ 18, 18.5, pp. 3545-3548).)
In People v. Rodriguez (1998) 17 Cal.4th 253, 261, the California Supreme Court held a reference in an abstract of judgment to “ASLT GBI/DLY WPN” was insufficient to support a finding the defendant had personally inflicted great bodily injury or personally used a weapon so as to qualify his section 245(a)(1) conviction as a prior serious felony. The abstract of judgment showed only the least adjudicated elements of the crime, which were insufficient to establish a “serious” felony because a conviction under section 245(a)(1) could result from aiding and abetting another in an assault committed with a deadly weapon or from personally committing an assault by means which were likely to cause great bodily injury, but which did not involve the use of a weapon or actually result in great bodily injury. (People v. Rodriguez, supra, at pp. 261-262.)
However, in 2000 Proposition 21 added subdivision (c)(31) to section 1192.7, making “assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of section 245” a serious felony. A conviction for assault with a deadly weapon under section 245(a)(1) now qualifies as a serious felony under section 1192.7, subdivision (c)(31) whether or not the defendant was convicted as a direct perpetrator or as an aider and abettor. (People v. Luna (2003) 113 Cal.App.4th 395, 398.) “But the amendment did not change the status of an assault by means of force likely to produce great bodily injury, the other variant of section 245, subdivision (a)(1). Even under the amended law, a conviction of assault by means likely to cause great bodily injury is not a serious felony unless it also involves the use of a deadly weapon or actually results in the personal infliction of great bodily injury. [Citations.]” (Banuelos, supra, 130 Cal.App.4th 601, 605.)
The post-Proposition 21 definition of serious felonies applies in this case as defendant’s current offenses were committed after the March 2000 effective date of Proposition 21. (People v. James (2001) 91 Cal.App.4th 1147, 1150.)
The evidence before the trial court supports the finding that defendant’s 1992 section 245(a)(1) conviction involved the use of a deadly weapon.
The information charged defendant with “the crime of ASSAULT GREAT BODILY INJURY AND WITH DEADLY WEAPON” in that defendant “willfully and unlawfully commit[ted] an assault upon Timothy Lee Malto with a deadly weapon, to wit, a bat, and by means of force likely to produce great bodily injury.” (Italics added.) The use of the conjunctive in an information charging a violation of section 245(a)(1), when the statute uses the disjunctive in defining the crime, has been found to charge “only the single act of assault with a deadly weapon[.]” (People v. Flynn (1995) 31 Cal.App.4th 1387, 1394.) “In such instance the phrase ‘by means of force likely to produce great bodily injury’ simply describes the manner in which the weapon is used and serves to explain why it thereby constitutes a deadly weapon.” (Ibid.) Defendant pled guilty “to the charge as set forth in Count 1 of the Information, assault with great bodily injury, violation of Penal Code Section 245(a)(1), as a felony[.]” As stated in People v. Hayes (1992) 6 Cal.App.4th 616, 623: “[W]here a defendant enters a guilty plea constituting his voluntary admission he committed the acts alleged in the indictment, such plea unequivocally establishes the particular elements alleged were both raised and resolved.” (Accord, People v. Davis (1996) 42 Cal.App.4th 806, 814.)
Defendant’s reference in his plea declaration to the charge as being “count I P.C. 245 assault, great bodily injury” and the trial court’s oral references in taking defendant’s guilty plea to the charge in count 1 as “assault with great bodily injury” do not change this analysis as it appears such references were only a short-hand, albeit not particularly accurate, method of referring to the allegations as stated in count 1 of the information. Defendant was only charged with and therefore admitted assault with a deadly weapon. The minute order of defendant’s sentencing reflects he was convicted of “Count 1, PC 245(A)(1) Assault w/deadly weapon, felony[.]” The abstract of judgment indicates defendant was convicted of “ADW W/GBI, ” which might be ambiguous if it was the only evidence submitted, but in context of the information and plea, appears to reflect the conjunctive allegation of defendant’s assault in violation of section 245(a)(1).
Substantial evidence supports the trial court’s finding that defendant’s 1992 section 245(a)(1) conviction qualifies as a serious felony under section 1192.7, subdivision (c)(31).
II.
Our review of the record shows defendant was sentenced on count two to one-third of the middle term (one year) doubled pursuant to the three strikes law (two years) to run concurrently with defendant’s sentence on count one. On the abstract of judgment, however, the box for a “consecutive” one-third middle term is checked, although the two years imposed is in parenthesis to reflect concurrent time. We will order the abstract of judgment corrected to delete the checkmark in the consecutive one-third violent box and to place the checkmark in the box for a concurrent term.
DISPOSITION
The judgment is affirmed. However, the trial court is directed to correct the abstract of judgment by deleting the checkmark in the consecutive one-third violent box and placing the checkmark in the box for a concurrent term. The court shall forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON, Acting P.J., HULL, J.