Opinion
A114977
8-5-2008
THE PEOPLE, Plaintiff and Respondent, v. ERNEST ALFONSO REED, Defendant and Appellant.
Not to be Published
Defendant Ernest Alfonso Reed appeals following his convictions for kidnapping and making criminal threats. He challenges the trial courts instruction on the reasonable belief in consent defense to kidnapping and contends that the People failed to prove his 1991 conviction for aggravated assault was a serious felony for purposes of the three strikes law. We affirm.
PROCEDURAL BACKGROUND
On January 6, 2006, the Marin County District Attorney filed an amended information charging defendant with kidnapping (Pen. Code, § 207, subd. (a); count one); criminal threats (§ 422; count two); and dissuading a witness by force or threat (§ 136.1, subd. (c)(1); count three). The information also charged a weapon enhancement as to counts one and two, that defendant suffered five prior felony convictions, and that defendant suffered one prior serious felony conviction.
All further statutory references are to the Penal Code unless otherwise indicated.
A jury convicted defendant of counts one and two and found true the weapon enhancement. The trial court found defendants prior conviction for aggravated assault was a strike. The court imposed a five-year prison term on count one, and then doubled the sentence to ten years due to the strike prior pursuant to section 1170.12. A one-year consecutive term for the weapon enhancement brought the aggregate prison sentence to eleven years. The court imposed a four-year term for count two but stayed the sentence under section 654.
FACTUAL BACKGROUND
Defendant and the victim, Charlene Kelly, started dating and living together in early 2003. Defendant was verbally and physically abusive. Starting in October 2003, Kelly obtained a series of restraining orders against defendant, following a series of threatening incidents, but she also periodically reconciled with him.
Kelly worked as a driver for a paratransit bus company. On April 26, 2005, Kelly spoke to defendant and told him she would return that night to his home. She did not do so. On the following day, Kelly arrived to work around 5:45 a.m. Another bus driver witnessed defendant run up to her car, hit her window, and yell "Why did you do me like that?" Kelly told him to get away from her. Defendant and Kelly struggled. Eventually, he forced himself into the drivers seat.
At the preliminary hearing, Kelly testified defendant was holding a box cutter and threatened to cut her throat. She did not try to escape because she was afraid defendant would cut her. At trial, she recanted those aspects of her testimony.
Defendant drove the car away from Kellys workplace with Kelly in the front passenger seat. Kelly suggested he drive them to a 7-Eleven convenience store, and he did so. They entered the store and Kelly bought a cup of coffee. She did not ask for help because she was afraid defendant would do something to her.
After leaving the store, defendant gave Kelly her car keys, and she drove him to his car and returned to work. A co-worker testified that Kelly returned to work after 35 to 45 minutes: she was "teary-eyed" and "really, really, really upset." After driving part of her route, she told the dispatcher "I cant work anymore. You need to clear my route." She asked a supervisor to call the police.
The police arrested defendant and recovered a box cutter on the front seat of his car. A defense witness later testified defendant was issued a similar box cutter for his work at a grocery store.
DISCUSSION
I. Instruction on Reasonable Belief in Consent
The trial court instructed on the defense of reasonable belief in consent using CALJIC 9.58: "It is a defense to the crime of kidnapping that a defendant lacked general criminal intent. There is no general criminal intent if a defendant entertained a reasonable and good faith belief that the person alleged to have been kidnapped voluntarily consented to accompany the defendant and to the movement involved in the purported kidnapping. If from all the evidence you have a reasonable doubt that the defendant had general criminal intent at or during the time of the movement, you must find him not guilty of kidnapping."
CALJIC 9.58 is based on the defense to kidnapping recognized by the California Supreme Court in People v. Mayberry (1975) 15 Cal.3d 143 (Mayberry). There, in the context of charges of rape and kidnapping, the court concluded that a reasonable and good faith mistake of fact regarding consent is incompatible with the existence of the wrongful intent required for criminal culpability. (Id. at pp. 153-155.) This mistake of fact defense has both a subjective and an objective component. (People v. Williams (1992) 4 Cal.4th 354, 360.) "The subjective component asks whether the defendant honestly and in good faith, albeit mistakenly, believed that the victim consented to," in this case, the movement involved in the purported kidnapping. (Id. at pp. 360-361.) The objective component "asks whether the defendants mistake regarding consent was reasonable under the circumstances." (Id. at p. 361.) A claim of mistake of fact as to consent is an affirmative defense, and defendant has the burden of raising a reasonable doubt as to whether he harbored a reasonable and good faith belief as to the victims consent. (Id. at p. 361; People v. Simmons (1989) 213 Cal.App.3d 573, 579.) Nevertheless, the prosecution retains the ultimate burden of proving defendant had the requisite wrongful intent. (People v. Howard (1996) 47 Cal.App.4th 1526, 1533, disapproved on other grounds in People v. Fuhrman (1997) 16 Cal.4th 930, 947, fn. 11; see also People v. Curtis (1994) 30 Cal.App.4th 1337, 1353.) Defendant maintains the trial courts instruction failed to inform the jury that the prosecution bore the burden of disproving the Mayberry defense.
In addressing a claim of instructional error, we determine the correctness of the instructions from the entire charge, rather than judging the propriety of a single instruction in isolation. (People v. Smithey (1999) 20 Cal.4th 936, 963.) An erroneously omitted element in one instruction may be supplied by another instruction. (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) "If a jury instruction is ambiguous, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction." (Smithey, at p. 963.)
The instructions given by the trial court informed the jury (1) the prosecution had the burden of proving defendants guilt beyond a reasonable doubt (CALJIC 2.90); (2) the crime of kidnapping required general criminal intent (CALJIC 3.30); (3) there was no general criminal intent if defendant had a reasonable and good faith belief that the person consented to the movement involved in the purported kidnapping (CALJIC 9.58); and (4) if the jury had a reasonable doubt that defendant had general criminal intent it was required to find him not guilty of kidnapping (CALJIC 9.58). Viewed as a whole, the instructions properly instructed the jury about the applicable burden of proof.
The cases defendant relies on are inapposite. In People v. Spry (1997) 58 Cal.App.4th 1345, 1369 (Spry), disapproved on other grounds in People v. Martin (2001) 25 Cal.4th 1180, 1192, the defendant bore the burden of proving certain facts by a preponderance of the evidence to support his defense of possessing narcotics solely for the purpose of disposal. The court concluded the challenged instruction failed to inform the jury which party bore the burden of proving the existence of the critical facts and the magnitude of the burden. (Spry, at p. 1370.) In People v. Simon (1995) 9 Cal.4th 493, 501, the trial court instructed the jury the defendant bore the burden of proving that the corporate securities at issue were exempt under the statute at issue, but the instruction failed to inform the jury that defendants burden was only to raise a reasonable doubt as to whether the securities were exempt.
Another case, People v. Adrian (1982) 135 Cal.App.3d 335, 337, involved the trial courts refusal to give a requested instruction pinpointing the crux of defendants case, rather than a trial courts sua sponte duty to give adequate instructions on the law applicable to the case.
In the present case, the trial court never instructed the jury that defendant bore any burden as to the Mayberry defense. There is no reasonable likelihood the jury misunderstood the prosecutions burden of proving the existence of general criminal intent, including the absence of reasonable and good faith belief in consent, beyond a reasonable doubt.
II. Proof That Prior Conviction For Aggravated Assault Was a Serious Felony
The three strikes law prescribes increased punishment for a person who is convicted of a felony after sustaining one or more qualifying prior felony convictions, commonly known as "strikes." (§§ 667, subds. (b)-(i), 1170.12.) Defendant contends insufficient evidence supports the trial courts determination that his 1991 conviction for aggravated assault (pursuant to section 245, subdivision (a)(1)), constituted a serious felony within the meaning of the three strikes law, which determination resulted in doubling of the prison terms imposed on counts one and two.
Our review is governed by the substantial evidence standard. (People v. Delgado (2008) 43 Cal.4th 1059, 1067 (Delgado).) We examine the record in the light most favorable to the judgment to determine whether a rational trier of fact could find the prosecution sustained its burden of proving beyond a reasonable doubt that defendant was convicted of a prior serious felony. (Ibid.)
An aggravated assault is an assault committed with a deadly weapon or by means of force likely to cause great bodily injury. (§ 245, subd. (a)(1).) But an aggravated assault is not a serious felony unless it involves the use of a deadly weapon or results in the personal infliction of great bodily injury. (People v. Banuelos (2005) 130 Cal.App.4th 601, 605 (Banuelos); see also Delgado, supra, 43 Cal.4th at pp. 1065, 1067.) A plea of guilty or no contest to a criminal statute punishing alternative types of conduct is insufficient to prove the defendant committed each type of conduct. Instead, where the record does not disclose the facts of the offense committed, we must "`presume that the prior conviction was for the least offense punishable" under the statute. (People v. Rodriguez (1998) 17 Cal.4th 253, 262; see also Delgado, at pp. 1066-1067.) In the context of section 245, that "least offense" is an assault by means of force likely to cause great bodily injury, which does not constitute a serious felony. (Banuelos, at pp. 605-607.)
The 1991 information charged defendant with assault "with a deadly weapon, to wit, CLUB and by means of force likely to produce great bodily injury." Defendant pled no contest to this charge. The abstract of judgment lists section 245, subdivision (a)(1), and describes the crime as "assault w/dead weap." In finding the 1991 conviction constituted a serious felony, the trial court stated, "Based upon the documentation presented, without considering the probation report, particularly including the abstract, which does not appear to the court to be ambiguous, but if it were in combination with the Information and what appears to be a thorough set of minutes, it appears that the defendant entered a nolo contendere plea to the charge in Count 1, which included both weapon and by means of force. So the court finds that it is proved beyond a reasonable doubt that the defendant has the alleged strike prior, 245[, subdivision] (a)(1), assault with a deadly weapon, from Sonoma County, 1991."
Defendant relies on Banuelos, supra, 130 Cal.App.4th 601, in which the court was confronted with an abstract of judgment which stated, "`ASSAULT GBI W/DEADLY WEAPON." (Id. at p. 605.) The court of appeal concluded the notation was ambiguous and did not constitute substantial evidence a deadly weapon was used, reasoning: "Although the notation could be read to mean that the assault was committed both by means of force likely to produce great bodily injury and with a deadly weapon, it could also be construed as a shorthand description of the criminal conduct covered by section 245, subdivision (a)(1) — assault by means of force likely to produce great bodily injury or with a deadly weapon." (Banuelos, at p. 606.) The opinion emphasized, "we cannot be confident that this abbreviated description of a statute prohibiting two types of criminal conduct was anything more than that particular court clerks shorthand method of referring to the statute under which appellant was convicted." (Ibid.)
The obvious distinction between Banuelos and the instant case is that in Banuelos the notation was facially ambiguous because it referred to both great bodily injury and a deadly weapon. (See Delgado, supra, 43 Cal.4th at p. 1069.) It was unclear whether the clerk intended to specify one or the other, or both. The notation in the present case refers only to a deadly weapon; the description is "Assault w/dead weap." Thus, there is no facial ambiguity. The California Supreme Court recently considered analogous circumstances in Delgado. The abstract of judgment involved in that case was essentially identical to that in this case, describing the prior offense as "Asslt w DWpn." (Delgado, at p. 1063.) The Supreme Court held that an abstract describing the offense in those terms can, "standing alone," provide substantial evidence for a trial courts prior serious felony finding. (Id. at pp. 1063, 1065, 1069-1070.)
In concluding that a facially unambiguous abstract of judgment is sufficient, Delgado emphasized that "`[O]fficial government records clearly describing a prior conviction presumptively establish that the conviction in fact occurred . . . . (See Evid.Code, § 664 ["It is presumed that official duty has been regularly performed"].) Some evidence must rebut this presumption before the authenticity, accuracy, or sufficiency of the prior conviction records can be called into question." (Delgado, supra, 43 Cal.4th at p. 1066.) The facially unambiguous abstract of judgment was "prima facie evidence, in the form of a clear, presumptively reliable official record of defendants prior conviction, that the conviction was for the serious felony of assault with a deadly weapon. Defendant produced no rebuttal evidence. Utilizing the presumption of official duty, and drawing reasonable inferences from the official record, the trial court, as a rational trier of fact, could thus properly find beyond reasonable doubt that a prior serious felony conviction had occurred." (Id. at p. 1070.)
The presumption of accuracy attaching to the abstract of judgment also has not been rebutted in this case. Defendant argues that the abstract should carry less weight in this case than in Delgado because, while the 1999 prior conviction in Delgado was subsequent to the 1994 adoption of the three strikes law (see People v. Woodell (1998) 17 Cal.4th 448, 452), the 1991 prior conviction here preceded the enactment. Although it may make sense to be particularly skeptical of ambiguous pre-1994 abstracts of judgment, the fact that the accuracy of the description on the abstract was less important at the time of the prior conviction does not overcome the presumption of validity. (Delgado, supra, 43 Cal.4th at p. 1071 ["Whatever the penal significance of the abstracts description, the trial court was entitled to infer it had been accurately prepared"].) Otherwise, the presumption would be undermined in every case where the official duty at issue is not of grave importance.
Defendant also contends that the entire record is ambiguous as to the nature of the prior conviction because in the prior case defendant did not plead guilty to possession of a deadly weapon even though it was charged in the information and because defendant denied using a weapon in his statement to the probation officer. Neither fact is of evidentiary value. It is not uncommon for charges to be dismissed as part of a plea bargain, so no reasonable inference can be made from dismissal of the weapon possession count. Neither does defendants self-serving, unsworn statement to the probation officer carry any evidentiary weight. (See Delgado, supra, 43 Cal.4th at p. 1072 [ambiguous FBI document of unknown reliability does not undermine sufficiency of evidence to support trial courts finding].) Defendant not only denied using a weapon, but he denied willfully hitting the victim, which was contrary to his plea.
Following Delgado, supra, 43 Cal.4th 1059, we conclude that because the abstract of judgment is unambiguous, presumptively accurate, and unrebutted, substantial evidence supports the trial courts finding that defendant suffered a prior conviction of a serious felony.
DISPOSITION
The judgment is affirmed.
We concur:
SIMONS, ACTING P. J.
NEEDHAM, J.