People v. Jones CA2/1 ( 2015 )

Filed 9/30/15 P. v. Jones CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B262871
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA096275)
v.
RALPH JONES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County. James D.
Otto, Judge. Affirmed.
Katja Grosch, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
________________________________
An information filed on August 16, 2013, charged appellant Ralph Jones with
second degree robbery in violation of Penal Code section 2111, second degree
commercial burglary in violation of section 459, and possession of a controlled substance
in violation of Health and Safety Code section 11377, subdivision (a). The information
alleged that Jones had suffered prior convictions for 10 serious or violent felonies.
On October 3, 2013, Jones pleaded guilty to commercial burglary and possession of a
controlled substance, and the court dismissed the robbery charge and sentenced Jones to
7 years 4 months in prison.
On December 29, 2014, Jones petitioned the court for resentencing pursuant to
section 1170.18, which codifies part of Proposition 47, “the Safe Neighborhoods and
Schools Act.” (Prop. 47, § 14, as approved by voters, Gen. Elec. (Nov. 4, 2014),
effective Nov. 5, 2014.)
After a hearing conducted on February 17, 2015, the trial court denied Jones’s
petition, finding that he was ineligible for relief under Proposition 47 because he had
previously been convicted of a so-called “super strike” offense,2 namely a Texas
conviction for attempted murder. Jones filed a timely notice of appeal.
We appointed counsel to represent Jones in the matter. After examining the
record, counsel filed a Wende brief raising no issues on appeal and requesting that
we independently review the record. (People v. Wende (1979) 25 Cal. 3d 436.)
On July 8, 2015, we sent a letter to Jones and to counsel. In the letter, we directed
counsel to immediately send the record on this appeal and a copy of the Wende brief
to Jones and informed Jones that he had 30 days to submit by letter or brief any ground
of appeal, contention or argument he wished us to consider. Jones filed a brief on
July 29, 2015.
1
Unless otherwise indicated, citations are to the Penal Code.
2
The “super strike” offenses, which bar relief under Proposition 47, are those listed
in section 667, subdivision (e)(2)(C)(iv).
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We have reviewed the entire record and determined that, because Jones was
convicted of a super strike offense, he is ineligible for resentencing under Proposition 47.
We therefore affirm the trial court’s order denying Jones’s petition.
In his brief, Jones contends that there was insufficient evidence to support the
finding that his Texas conviction was a super strike, that the court violated his due
process rights by conducting his resentencing hearing without his presence, and that he
received ineffective assistance of counsel at the hearing. We reject all of these
contentions.
Jones argues that the prosecution failed to provide sufficient evidence that he had
been convicted of a super strike. He concedes he was convicted in Texas in 1972 of
assault to murder, but he argues that this offense was not the same as the crime of
attempted murder in California on the ground that the Texas statute did not require that
the defendant act with specific intent to kill. An out-of-state conviction is a super strike
if it “is for an offense that includes all of the elements” of a super strike offense in
California. (§ 667, subdivision (d)(2).) Although the names are different, there is
nothing to distinguish assault to murder as then defined in Texas from the offense of
attempted murder in California. As the court noted in Samuel v. State (Tex.Crim.App.
1972) 477 S.W.2d 611, a case published the same year as Jones’s conviction, “‘[i]t is
well established that a specific intent to kill is an essential element of the offense
of assault to murder.’” (Id. at p. 613, quoting Hall v. State (Tex.Crim.App. 1967)
418 S.W.2d 810, 812.) Jones cites People v. Purata (1996) 42 Cal. App. 4th 489 for the
proposition that in Texas at the time of Jones’s offense, a specific intent to cause serious
bodily injury, rather than to kill, was sufficient for a conviction of assault to murder.
In fact, however, the court in Purata rejected that interpretation, finding that the
Texas statute contained the same elements as did attempted murder in California.
(Id. at pp. 496-497.) Thus, the trial court correctly concluded that Jones had been
convicted of a super strike and was ineligible for relief under Proposition 47.
Jones next argues that he was deprived of due process because he was not
personally notified of the hearing, nor of the prosecution’s intention to use his prior
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conviction in Texas to deny him relief. Although a defendant has the due process right to
be present at all critical stages of a trial, he “is not entitled to be personally present during
proceedings that bear no reasonable, substantial relation to his opportunity to defend the
charges against him, and the burden is on the defendant to demonstrate that his absence
prejudiced his case.” (People v. Benavides (2005) 35 Cal. 4th 69, 89.) At a resentencing
hearing, the court may not consider evidence apart from the record of conviction.
(People v. Bradford (2014) 227 Cal. App. 4th 1322, 1331.) Jones’s personal presence
at the resentencing hearing bore no relationship to his conviction of the commitment
offense and therefore, he did not have a due process right to be personally present at
resentencing, and neither his absence nor the failure to notify him of the use of the Texas
conviction prejudiced him.
Finally, Jones argues that his attorney provided ineffective assistance of counsel
because she did not insist on obtaining certified copies of the record of his conviction in
Texas, argue the difference between the Texas and California attempted murder statutes,
or notify Jones about the use of the Texas conviction as a super strike. We reject this
claim because none of these measures would have made a difference in the outcome of
the case. (See Strickland v. Washington (1984) 466 U.S. 668, 687.)
DISPOSITION
The order denying defendant’s Proposition 47 petition for recall and resentencing
is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
JOHNSON, J. LUI, J.
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