Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F01200
NICHOLSON, J.
In two separate incidents, defendant committed assaults against his live-in girlfriend. A jury convicted defendant of assaultive crimes and a criminal threat, and the trial court found that two Mississippi convictions constituted strikes under the “Three Strikes� law. The court sentenced defendant to a determinate state prison term of 21 years, plus an indeterminate term of 50 years to life.
On appeal, defendant contends that (1) there was insufficient evidence to support a conviction for assault with force likely to produce great bodily injury (count four), (2) there was insufficient evidence to sustain the finding that one of the Mississippi convictions constituted a strike under the Three Strikes law, and (3) the court improperly added two five-year enhancements to the sentence imposed for assault with force likely to produce great bodily injury.
We conclude that there was insufficient evidence to sustain one of the strike allegations. We also conclude that the trial court improperly added two five-year enhancements to the sentence for assault with force likely to produce great bodily injury. We therefore strike the two five-year enhancements, vacate the strike allegation and sentence, affirm the remainder of the judgment, and remand for further proceedings on the strike allegation.
PROCEDURE
The district attorney filed an information charging five felony counts and alleging two prior convictions qualifying as strikes.
Counts one, two, and three alleged felonies committed against Chrystine Sinclair on February 12, 2005. Count one alleged infliction of injury on a cohabitant (Pen. Code, § 273.5, subd. (a)), with an allegation that defendant personally used a knife (§ 12022, subd. (b)(1)). Count two alleged assault with a deadly weapon (a knife) (§ 245, subd. (a)(1)), as a serious felony. An enhancement for personal use of a knife was alleged as to count two, but it was later stricken on the prosecutor’s motion. Count three alleged a criminal threat. (§ 422.)
Hereafter, references to an unspecified code are to the Penal Code.
Court four alleged an assault by means of force likely to produce great bodily injury against Sinclair on January 9, 2005. (§ 245, subd. (a)(1).) And count five alleged assault with a deadly weapon (a cane) against Sinclair between December 25, 2004, and January 4, 2005, as a serious felony. (§ 245, subd. (a)(1).)
The two prior strike allegations were for convictions in Mississippi. In 1992, defendant was convicted of aggravated assault with a deadly weapon. And in 1996, defendant was convicted of manslaughter.
Defendant entered a dual plea of not guilty and not guilty by reason of insanity to all counts and the enhancement and denied the prior conviction allegations.
After a guilt phase, a jury convicted defendant on counts one through four and, as to count one, found true the personal knife use enhancement. The jury found defendant not guilty on count five. After a sanity phase, the jury found that defendant was legally sane when he committed the crimes.
The trial court found true the two prior strike allegations. As to count one, the court sentenced defendant to a term of 25 years to life, plus one year for use of a deadly weapon, and two five-year terms for prior serious felony convictions. The court imposed concurrent terms of 25 years to life plus 10 years, for the prior serious felony convictions, on counts two and three. As to four, the court imposed a consecutive term of 25 years to life, again adding two five-year terms for prior serious felony convictions.
FACTS
January 9, 2005, Incident (Count Four)
Sinclair met defendant in December 2004 when they both visited Adult Family Services to receive assistance. Defendant invited Sinclair to his house for dinner, and they soon began an intimate relationship. Sinclair moved into defendant’s house and, although she had her own bedroom, often shared the master bedroom with defendant.
On January 9, 2005, Sinclair found that some beans had been left out of the refrigerator. She and defendant argued about whether they needed to be refrigerated. As Sinclair was putting them in the refrigerator, defendant came up behind her and kicked her. She turned around, and defendant punched her in the nose with a closed fist, causing blood to gush out of her nose. Sinclair ran into another room to try to get away from defendant, but he followed. Defendant hit her repeatedly in the back with his closed fists as she crouched down in a chair. When defendant walked back into the kitchen, Sinclair ran out of the house.
Sinclair ran to a neighbor’s home, but no one was home. She went to another neighbor’s home, where the neighbor let her in and called the police. When the police arrived, Sinclair had blood on her face. She complained of pain in her upper and lower back, as well as her face, nose, and mouth area. She sustained bruising around her nose.
Defendant was jailed. But a few days later he was released and returned to the house. He and Sinclair resumed their relationship.
February 12, 2005, Incident (Counts One, Two, and Three)
On February 12, 2005, Sinclair was eating a bowl of ice cream in the living room. Defendant came home after going to the store. He took her ice cream, smashed the bowl in the sink, and told her, “Why don’t you get out of here?� She said, “Okay,� and went to get some shoes and socks.
Sinclair was in the closet in her bedroom when she heard defendant behind her. He had a large butcher knife. She turned around, and he attacked with a slashing motion, cutting her thumb. As the thumb began to bleed, defendant said, more than once, “Well, now that I’ve cut you, now I have to kill you.� Defendant continued to make slashing movements with the knife. Sinclair grabbed hangers and other things in the closet to try to fend off defendant’s attacks. Defendant said, “I’m gonna cut your guts out.� He cut Sinclair 16 to 18 times on the hands and arms and scratched her on the stomach. Sinclair feared for her life as she frantically fended defendant off. Eventually, Sinclair was able to push defendant away and run out of the house.
Sinclair went to the landlady’s house, about a quarter mile away. The landlady let her in and called 911.
Insanity Plea
We need not recount the evidence presented during the sanity phase because defendant makes no contention concerning that phase.
DISCUSSION
I
Sufficiency of Evidence
Defendant contends that the evidence was insufficient to sustain a conviction for assault with force likely to produce great bodily injury committed on January 9, 2005. Section 245, subdivision (a)(1) states: “Any person who 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 shall be punished . . . .� There was no evidence of deadly weapon use during this incident. However, we conclude that defendant’s act of striking Sinclair in the face with enough force to cause a severe bloody nose and to result in bruising constituted substantial evidence of force likely to produce great bodily injury.
“‘The proper test to determine a claim of insufficient evidence in a criminal case is whether, on the entire record, a rational trier of fact could find appellant guilty beyond a reasonable doubt. [Citations.] In making this determination, the appellate court “must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.� [Citations.] . . . “[O]ur task . . . is twofold. First, we must resolve the issue in the light of the whole record. . . . Second, we must judge whether the evidence of each of the essential elements . . . is substantial.� [Citation.]’ [Citation.]
“‘The statute prohibits an assault by means of force likely to produce great bodily injury, not the use of force which does in fact produce such injury. While . . . the results of an assault are often highly probative of the amount of force used, they cannot be conclusive.’ [Citation.] ‘[T]he question of whether or not the force used was such as to have been likely to produce great bodily injury, is one of fact for the determination of the jury based on all the evidence, including but not limited to the injury inflicted. [Citations.]’
“Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate. [Citations.]� (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1065-1066 (Armstrong), italics omitted.)
Although there was evidence of other force used by defendant during the attack, including kicking Sinclair and beating her on the back, it is sufficient in considering defendant’s contention to focus on his striking of Sinclair in the face.
Defendant contends that no reasonable jury would conclude that his striking of Sinclair in the face constituted force likely to cause anything more than moderate harm. To support his contention, he cites to an online medical encyclopedia that states that a nose has tiny blood vessels and bleeds quite easily. (See Nosebleed, Medline Plus, http://www.nlm.nih.gov/ medlineplus/ency/article/003106.htm.) He concludes that we must reduce the conviction to simple assault.
The blow that defendant struck to Sinclair’s face caused more than a simple nosebleed. The evidence was that, after defendant punched Sinclair in the face with a closed fist, the blood from her nose, in Sinclair’s words, “was gushing all over.� When the officer arrived to investigate, Sinclair had a bloody nose and bloody mouth. She had facial pain in her nose and mouth area and had bruising around her nose.
Evidence of a blow to the face of the force used by defendant in punching Sinclair is sufficient evidence to sustain a conviction for assault with force likely to produce great bodily injury. In Armstrong, the court described the evidence as follows: “During the attack, appellant grabbed both sides of [the victim’s] face and pinched both sides of her mouth. He ripped her clothing. Appellant held [the victim’s] jaw tightly and while on top of her, he shoved his whole hand down her throat so she would not scream. We conclude that a reasonable jury could find beyond a reasonable doubt that the force used on [the victim] constituted force likely to produce great bodily injury.� (Armstrong, supra, 8 Cal.App.4th at p. 1066.)
Here, the assault was as forceful as the assault in Armstrong. Defendant struck Sinclair in the face hard enough to produce a severe nosebleed and subsequent bruising. This evidence was sufficient to sustain the jury’s determination that the blow was likely to produce great bodily injury, not just moderate harm.
II
Serious Felony Finding
The trial court found that defendant had two prior serious felony convictions, both in Mississippi. Defendant contends that the evidence (the record of conviction for those crimes) does not support the finding that one of those convictions, for manslaughter, was a serious or violent felony under the Three Strikes law. The Attorney General agrees and argues that we must remand for a new trial as to whether defendant’s Mississippi conviction for manslaughter was a serious felony conviction under California law. Defendant asserts that we cannot remand for a new trial because the defect in proof cannot be corrected in a new trial. We conclude that defendant and the Attorney General are correct that the record of conviction does not support the finding that defendant’s Mississippi manslaughter conviction was a serious or violent felony conviction under the Three Strikes law. Contrary to defendant’s argument concerning remand, however, we conclude that the prosecutor may retry the strike allegation.
Record of Conviction
“Under the Three Strikes law, a prior conviction from another jurisdiction constitutes a strike if it is ‘for an offense that includes all of the elements of the particular felony as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.’ (Pen. Code, §§ 667, subd. (d)(2), 1170.12, subd. (b)(2).) Thus, the prior foreign conviction ‘must involve conduct that would qualify as a serious [or violent] felony in California.’ (People v. Avery (2002) 27 Cal.4th 49, 53.) ‘To make this determination, the court may consider the entire record of the prior conviction as well as the elements of the crime.’ [Citation.] If the record insufficiently reveals the facts of the prior offense, the court must presume the prior conviction was for the least offense punishable under the foreign law. (People v. Rodriguez (1998) 17 Cal.4th 253, 262; People v. Guerrero (1988) 44 Cal.3d 343, 352.)â€� (People v. Jenkins (2006) 140 Cal.App.4th 805, 810.)
Indicted in Mississippi for the murder of Darius E. Miller in 1995, defendant pled guilty to manslaughter and was sentenced to a term of 20 years. To establish that the Mississippi manslaughter conviction involved conduct that would qualify as a serious or violent felony in California, the prosecution, in this case, submitted section 97-3-35 of the Mississippi Annotated Code, which describes manslaughter as “[t]he killing of a human being, without malice, in the heat of passion, but in a cruel and unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense . . . .� Using this definition, along with the record of defendant’s guilty plea and sentencing, the trial court concluded that defendant’s Mississippi manslaughter conviction was for a serious felony under the Three Strikes law.
The flaw in the prosecution’s presentation was that there are several Mississippi statutes defining manslaughter. The prosecution presented only one of those statutes to the trial court. But the record of conviction does not reveal the specific manslaughter statute under which defendant was convicted.
Mississippi has at least five statutes defining manslaughter. (See Miss. Code Ann., §§ 97-3-27, 97-3-29, 97-3-31, 97-3-33, 97-3-35.) As noted, section 97-3-35 of the Mississippi Annotated Code describes manslaughter as “[t]he killing of a human being, without malice, in the heat of passion, but in a cruel and unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense . . . .â€� This describes what California law would refer to as voluntary manslaughter. (See CALCRIM No. 570.) And voluntary manslaughter is a serious or violent felony under California law and a strike under the Three Strikes law. (See §§ 667.5, subd. (c)(1); 1192.7, subd. (c)(1).)
Other Mississippi manslaughter statutes, however, are not necessarily consistent with a finding that the conviction under that statute qualifies as a strike under the Three Strikes law. For example, section 97-3-33 of the Mississippi Annotated Code describes manslaughter as “[t]he involuntary killing of a human being by the act, procurement, or culpable negligence of another, while such human being is engaged in the commission of a trespass or other injury to private rights or property, or is engaged in an attempt to commit such injury . . . .� There is no analogous California statute or case law making the involuntary killing of a trespasser a strike, unless, of course, it is committed using a deadly weapon, or some other circumstance, specific to the crime, making the Three Strikes law applicable.
Because we must presume the prior conviction was for the least offense punishable under the Mississippi manslaughter statutes, we cannot, on this record, conclude that defendant’s Mississippi manslaughter conviction constituted a strike under the Three Strikes law. (See People v. Rodriguez, supra, 17 Cal.4th at p. 262.) Accordingly, we must vacate the trial court’s strike finding.
Remand for Retrial
Although the parties agree that the strike based on the Mississippi manslaughter conviction must be vacated, they disagree concerning whether it may be retried. Because the prosecution may be able to present additional evidence from the record of the Mississippi conviction that establishes the applicable code section and the circumstances of the manslaughter conviction, we conclude that the strike allegation may be retried.
Neither double jeopardy nor other constitutional or equitable principles bar retrial of a strike allegation after a true finding has been vacated on appeal for insufficient evidence. (People v. Barragan (2004) 32 Cal.4th 236, 239.) The strike allegation may be retried if the defects in proof are capable of correction. (Id. at p. 245.)
Here, defendant asserts that “there is no suggestion that the prosecution introduced something less than the entire record of conviction, and no indication that new, admissible evidence could ‘clarify’ this record to support a finding that the prior was a serious felony.� We disagree. We have no way of knowing what parts of the Mississippi record of conviction exist that were not presented to the trial court by the prosecution.
The record on appeal contains indications that, if the record of conviction can be supplemented on retrial, it will contain sufficient evidence to sustain the strike allegation. A form, apparently filled out when defendant was remanded to the custody of the Mississippi Department of Corrections, stated that defendant stabbed and killed Miller. Although, as the Attorney General concedes, the form is not part of the record of conviction, it reveals that the prosecutor may be able to establish on retrial that the Mississippi manslaughter conviction is a strike under the Three Strikes law because defendant inflicted great bodily injury and used a deadly weapon. (§ 1192.7, subd. (c)(8)&(23).) Additionally, defendant testified in the sanity phase of his trial in the current action that he stabbed Miller. (See People v. Trujillo (2006) 40 Cal.4th 165, 179 [discussing record of conviction].)
Accordingly, we must remand to give the prosecutor the opportunity to supplement the record of conviction.
III
Five-Year Enhancements
Defendant and the Attorney General agree that the two five-year enhancements added to the sentence on count four, assault by means of force likely to produce great bodily injury, must be stricken because the enhancements were not pled and neither the judge nor the jury made factual findings supporting the enhancements. We conclude that the parties are correct that the two five-year enhancements must be stricken.
Defendant gives other reasons he believes the enhancements must be stricken, but we need not discuss them in light of our determination that they must be stricken for the reasons agreed to by the Attorney General.
Section 667, subdivision (a)(1) provides that “any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction . . . .�
Assault by means of force likely to produce great bodily injury is not one of the felonies designated as a serious felony. Instead, it is a serious felony for purposes of section 667, subdivision (a)(1) only if the prosecution pleads and proves that defendant used a deadly weapon or actually inflicted great bodily injury. (People v. Taylor (2004) 118 Cal.App.4th 11, 23.) Here, count four of the information did not include allegations that would invoke the provisions of section 667, subdivision (a)(1). As a result, no factual findings were made that would allow the imposition of the five-year enhancements.
Accordingly, we must strike the two five-year enhancements associated with count four.
DISPOSITION
The judgment is modified by striking the two five-year sentence enhancements associated with the conviction for assault by means of force likely to produce great bodily injury (count four). The finding of a prior serious or violent felony conviction with respect to the Mississippi voluntary manslaughter conviction is reversed, and the sentence is vacated. The matter is remanded to the trial court with directions to give the prosecution, as soon as the matter can be heard, an opportunity to establish that the Mississippi manslaughter conviction constituted a strike under the Three Strikes law. If the prosecution successfully does so, the trial court shall reenter the judgment and sentencing, as modified. If the prosecution does not establish that the Mississippi manslaughter conviction constitutes a strike, the trial court shall dismiss the allegation and resentence defendant. In either event, the trial court shall prepare and distribute as appropriate a new abstract of judgment.
We concur: SCOTLAND, P. J., HULL, J.