People v. Turner CA1/1 ( 2015 )

Filed 9/15/15 P. v. Turner CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A142074
v.
TERRY B. TURNER, (San Francisco County
Super. Ct. No. SCN221345)
Defendant and Appellant.
In this appeal, we are asked to decide whether the prosecution established beyond
a reasonable doubt appellant was previously convicted of a serious felony pursuant to
Penal Code section 667, subdivision (a).1 The purported prior felony offense is first
degree burglary, the burglary of an inhabited dwelling. (§ 459.) If the prior offense was
proven beyond a reasonable doubt, appellant’s commitment to state prison for an
additional five years, imposed by the trial court, would be appropriate. We conclude the
record supports the determination by the trial court the prior offense was a serious felony
and affirm.
STATEMENT OF THE CASE
On March 7, 2014, the district attorney filed a second amended information
charging appellant Turner with several felonies. Counts one and two charged appellant
with violations of section 422 (terrorist threats). Count three charged a violation of
1
Unless otherwise stated, all statutory references are to the Penal Code.
section 273.5, subdivision (a) (infliction of corporal punishment on a cohabitant). Counts
four, five, six, seven and nine charged violations of section 245, subdivision (a)(4)
(aggravated assault). Count eight charged a violation of section 236 (false
imprisonment). The amended information also alleged appellant suffered a prior strike
conviction pursuant to sections 667, subdivisions (d)-(e), and 1170.12, subdivisions
(b)-(c), and a prior serious felony conviction under section 667, subdivision (a)(1). The
information further alleged appellant had three prior prison terms under section 667.5,
subdivision (b).
On March 20, 2014, the jury acquitted appellant of count two and count nine. The
jury convicted appellant of all the remaining counts. Following defendant’s waiver of
jury trial on all of the prior conviction-related allegations, in a bifurcated bench trial the
court found true two prior prison term allegations, as well as the prior strike allegation
and the prior serious felony allegation.
The court granted appellant’s motion to dismiss the prior strike allegation. The
court then sentenced appellant to state prison for a determinate term of eight years eight
months.
Appellant filed a timely notice of appeal.
ANALYSIS
A. Introduction.
We do not summarize the facts supporting the jury’s verdict in this case because
the sole issue is the five-year enhancement prior imposed by the trial court. In this appeal
appellant claims the five-year enhancement imposed by the trial court must be reversed
because the prosecution failed to establish by proof beyond a reasonable doubt appellant
suffered a serious felony prior.
B. Factual Background.
The second amended information in this case alleged appellant was “previously
convicted of the crime of FIRST DEGREE BURGLARY-RESIDENTIAL, violating
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section 459 of the Penal Code, a Felony, on or about the 10th day of October, 1996, in the
Superior Court of California, County of Sacramento.” The information also alleged this
offense was a prior serious felony conviction, within the meaning of section 667,
subdivision (a)(1). At the bench trial, the district attorney introduced exhibits Nos. 12
and 14 to prove the allegation.
Exhibit No. 14 is a collection of documents. The materials show that on
September 17, 1996, the prosecutor in Sacramento County filed a complaint against
appellant and two other persons in case No. 96F07374. Count one of the complaint
alleged appellant and his codefendants received stolen property, violating section 496,
subdivision (a). Count two alleged appellant and another codefendant committed the
crime of burglary, violating section 459. The complaint on this count indicated appellant
burglarized “an inhabited dwelling house and trailer coach and inhabited portion of [the]
building.” This was alleged to be a “serious felony” pursuant to section 1192.7,
subdivision (c)(18), an allegation that exclusively applies to first degree burglary.
A court minute order dated October 10, 1996, indicates appellant entered a no
contest plea to count two of the complaint, a violation of section 459. This minute order
notes specifically the offense pled to was a serious felony within the meaning of Penal
Code section 1192.7, subdivision (c)(18), i.e., first degree burglary. In his plea inquiry,
the trial court told appellant he could be sentenced to two, four, or six years in state
prison, the range of time for first degree burglary.
A sentencing minute order dated November 7, 1996, states appellant was
convicted of “PC 459 FEL 1 Nolo contendere.” Presumably, the reference to “FEL 1”
suggests a felony first degree burglary instead of second degree burglary, which can be
either a misdemeanor or felony.
A minute order dated April 28, 1998, states appellant admitted to a probation
violation in case No. 96F07374 (the case discussed above) after sustaining a new
conviction in case No. 97F04444. Appellant was sentenced to “MT 2 yrs SP c/c to
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97F04444.” During the bench trial on the enhancement prior allegations in this instant
case, the district attorney “interpreted” appellant’s sentence in case No. 96F07374 to
mean “[m]idterm two years state prison concurrent.”
Trial exhibit No. 12 was appellant’s rap sheet. Contained in the document were
conflicting entries on the 1996 burglary prior in case No. 96F07374. The entry at page 3
shows appellant was convicted of first degree burglary in that case and sentenced to two
years in state prison on April 28, 1998. Nevertheless, at page 4 of the exhibit, there is an
entry for appellant’s conviction in case No. 97F04444. That entry shows a two-year
principal term was imposed in case No. 97F04444, as well as a two-year subordinate term
for a second degree burglary conviction in case No. 96F07374.
C. Standard of Review.
A prior conviction must be proved at trial beyond a reasonable doubt, unless
admitted by the accused. (See § 1025, subds. (a), (b); People v. Miles (2008) 43 Cal.4th
1074, 1082.) When the statute underlying the prior offense does not specifically state the
crime is a serious felony, admissible evidence from the complete record of the particular
conviction may be examined to resolve this issue. (Ibid.) This evidence often will
include certified documents from the previous court proceeding and prison commitment.
(Ibid.)
Under People v. Johnson (1980) 26 Cal.3d 557, 576, the appellate court will focus
in this instance on whether substantial evidence supports the determinations made by the
trial court below. We must ask whether any rational trier of fact would reach the same
conclusion the fact finder below (here the trial court) reached after reviewing the
evidence on the matter submitted by each side, in the light most favorable to the
prevailing party. (People v. Crittenden (1994) 9 Cal.4th 83, 139.) “Although it is the
duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible
of two interpretations, one of which suggests guilt and the other innocence [citations], it
is the [fact finder], not the appellate court[,] which must be convinced of the defendant’s
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guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably justify the trier of
fact’s findings, the opinion of the reviewing court that the circumstances might also be
reasonably reconciled with a contrary finding does not warrant a reversal of the
judgment.” ’ ” (People v. Bean (1988) 46 Cal.3d 919, 932–933.)
D. Analysis.
Section 667 permits a sentencing enhancement for any person who is convicted of
a serious felony and who previously has been convicted of a serious felony. Under
section 667, subdivision (a), an additional term of five years is imposed. Under
subdivision (a)(4), a serious felony means a felony listed in subdivision (c) of section
1192.7. A violation of section 422, criminal threats, is a serious felony (§ 1192.7,
subd. (c)(38)), as is “any burglary of the first degree” (§ 1192.7, subd. (c)(18)).
The record indicates that in 1996, appellant was convicted of first degree burglary
in the County of Sacramento. The minute order indicates he entered a no contest plea to
count 2, alleged in the complaint to be a violation of section 459, burglary of an inhabited
dwelling house. This plea was entered in case No. 96F07374, which also alleged the
offense was a serious felony within the meaning of section 1192.7, subdivision (c)(18),
the first degree burglary subsection. Additionally, the court advised appellant his
sentencing range was from two to six years in state prison, the appropriate range for first
degree burglary.2 (§ 461, subd. (a).) We conclude these entries and remarks establish
appellant in fact entered a plea to first degree burglary, a serious felony.
The minute order dated November 7, 1996, corroborates the nature of the plea.
That document indicates appellant was convicted of “PC 459 FEL 1 Nolo contendere.” If
2
If the offense was for felony second degree burglary, in 1996 the sentence range would
have been 16 months, two years or three years in prison. (Former § 461, as amended in
1978 (Stats. 1978, ch. 579, § 24, p. 1985; former section 18, as amended in 1976 (Stats.
1976, ch. 1139, § 98, p. 5089.)
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the offense was second degree burglary, we would expect the entry to state “PC 459 FEL
2 Nolo contendere” or “PC 459 MIS.”
We must acknowledge the inconsistent entries in the appellant’s rap sheet
manifested by exhibit No. 12. However, this document was not made at the time of
sentencing for the offense deemed a “serious felony.” The rap sheet does not reflect the
sentencing options stated by the trial court who took the particular plea found to be a first
degree burglary by the trial court below. Nor is the rap sheet contemporaneous with the
clerk’s minute order entries at the time of both plea and sentence. The rap sheet
inconsistencies reflect at best a scrivener’s error, with the first entry consistent with other
documents and the second entry uniquely different to an otherwise consistent chronicle of
events.
With this record, the conclusion of the sentencing court and the fact finder here
will not be disturbed. The record supports its finding in this regard.
DISPOSITION
The judgment is affirmed.
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_________________________
DONDERO, J.
We concur:
_________________________
HUMES, P. J.
_________________________
MARGULIES, J.
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A142074
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