California Court of Appeal Sep 18, 2013 No. E056081Unpublished
Filed 9/18/13 P. v. Moore CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E056081
v. (Super.Ct.No. RIF10003079)
DALE BRUCE MOORE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Helios J. Hernandez,
Judge. Affirmed.
Catherine White, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, James D. Dutton and Stephanie H.
Chow, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Dale Bruce Moore appeals after he was found guilty by a
jury of two charges of failing to register as a sex offender. At a bifurcated proceeding, he
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admitted allegations that he had been convicted of strike priors and had suffered prior
prison terms. He now complains that his sentence was improper because the evidence
nor Penal Code section 667.5 (violent felony strikes) “separately lists” the crime of
“assault with a deadly weapon other than a firearm” as a qualifying strike offense.
Defendant argues that the only way to bring the offense within the definition of a
strike offense is proof that the offender personally used a dangerous or deadly weapon.
(Pen. Code, § 1192.7, subd. (c)(23).) A defendant may be convicted of assault with a
deadly weapon, other than a firearm, either by personally using the weapon, or as an aider
and abettor. (See People v. Williams (1990) 222 Cal.App.3d 911, 914-915.) When
defendant admitted his conviction of assault with a deadly weapon under Penal Code
section 245, subdivision (a)(1), he did not admit personal use of the weapon, nor did he
admit the nature of the conviction as either a serious or violent felony. Defendant
therefore urges that his admission alone did not provide sufficient proof that the prior
conviction was a strike.
On March 7, 2000, the electorate adopted Proposition 21 (Ballot Pamp., Primary
Elect. (Mar. 7, 2000), text of Prop. 21, § 17, pp. 124-125), which deleted personal use as
a necessary criterion to establish that an assault with a deadly weapon or firearm was a
serious felony (strike). (See People v. Luna (2003) 113 Cal.App.4th 395, 398 (Luna).)
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Penal Code section 1192.7, subdivision (c)(31), now provides that any “assault with a
deadly weapon [or] firearm . . . in violation of Section 245” is a serious felony (strike),
without regard to whether the conviction was as a perpetrator or as an aider and abettor.
Defendant urges this court to reject Luna on the ground that it partially renders
other subdivisions of Penal Code section 1192.7 surplusage.1 (See, e.g., Pen. Code,
§ 1192.7, subds. (c)(11) [assault with a deadly weapon on a peace officer], (c)(13)
[assault with a deadly weapon by an inmate], (c)(32) [assault with a deadly weapon
against a public transit employee].) However, Luna follows the plain meaning of
subdivision (c)(31). That Penal Code section 1192.7, subdivision (c)(31), may have some
overlap with other subdivisions is no reason to disregard its plain language.
In Delgado, supra, 43 Cal.4th 1059, the California Supreme Court held that the
notation on the abstract of judgment, “245(A)(1)” as “Asslt w DWpn” was sufficient to
support a finding that the conviction was a serious felony. (Id. at p. 1065.) That is, the
notation on the abstract of judgment was a “contemporaneous, statutorily sanctioned,
officially prepared clerical record of the conviction and sentence,” and as such was
sufficient to show that the conviction proceeded under the deadly weapon prong of Penal
Code section 245, subdivision (a)(1), and not the great bodily injury prong. The
1 Luna, supra, 113 Cal.App.4th 395 was partially overruled in People v. Delgado (2008) 43 Cal.4th 1059 (Delgado). To the extent that Luna suggested that both prongs of Penal Code section 245, subdivision (a)(1)—assault with a deadly weapon other than a firearm, on the one hand, or assault by use of force likely to cause great bodily injury, on the other—would now qualify as a serious felony (strike), the Supreme Court rejected it as to the great bodily injury prong. (Delgado, supra, 43 Cal.4th at p. 1070, fn. 4.)
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presumption of regularity in the clerk’s recording of this description of the offense on the
abstract of judgment, unrebutted by any contrary evidence, allowed the trier of fact to
conclude beyond a reasonable doubt that the conviction for assault with a deadly weapon
was a serious felony conviction. (Delgado, supra, 43 Cal.4th 1059, 1070.)
The abstract of judgment for defendant’s 2003 assault with a deadly weapon
conviction indicated that he had been convicted of “245(A)(1),” described as “Assault
w/ weapon.” The abstract identified only one of the two prongs as the applicable ground
for defendant’s conviction, and it so identified the prong that meets the definition of a
serious felony (strike). In addition, the record contains defendant’s plea form for this
offense, on which defendant was expressly advised, “This will count as a ‘strike’ in any
future cases.” These records, properly considered by the trial court below, together with
the presumption that duty was properly performed, support the inference that defendant
was convicted of a qualifying strike prior with respect to his 2003 assault with a deadly
weapon conviction.
Defendant’s 1987 conviction for first degree burglary also qualified as a strike.
Penal Code section 1192.7, subdivision (c)(18), provides that any conviction of burglary
in the first degree is a serious felony. The court asked defendant about his “[s]econd
strike,” of “November 9th, 1987, County of Riverside, burglary—that would be burglary
in the first degree, as a felony and as a strike. Do you admit or deny that?” Defendant
stated, “Admit.” Defendant’s oral admission on the record included the admission that
the burglary was of the first degree. The record contains two abstracts of judgment
relating to this 1987 burglary conviction, including notations that the offense is
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“BURGLARY 1st deg” or “BURGLARY, 1st deg inhabited bldg.” The evidence in the
record was clearly sufficient to sustain the trial court’s determination that the 1987
burglary conviction was a strike prior. (See People v. Myers (2007) 148 Cal.App.4th
546, 554 [Trial court may consider the entire record on the prior conviction to determine
whether it satisfies the elements of a serious felony.].)
Defendant’s remaining alleged strike priors were for convictions in the State of
Washington in 1978, for first degree rape and first degree kidnapping. At the time of
taking the admissions, the court inquired of defendant: “Third strike. That is November
20th, 1978, State of Washington, County of Spokane, convicted of kidnapping, which in
California code would be 207. . . . And that was a felony. To that, do you admit or
deny?” Defendant answered, “Admit.” The court continued, “A fourth strike.
November 20th, 1978, State of Washington, County of Spokane, convicted of the crime
of rape, which in California would be 261, but they have some other name for it in
Spokane, as a felony. Admit or deny?” Defendant replied, “Admit.”
Defendant admitted to suffering two out-of-state felony convictions, for
kidnapping and rape, and apparently also admitted that the convictions were equivalent to
the California offenses identified in Penal Code sections 207 (kidnapping) and 261
(rape). Both these California violations would qualify as strikes. (See Pen. Code,
§ 1192.7, subds. (c)(3) & (c)(20).)
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The Washington rape statute, Washington Revised Code Annotated, section
9A.44.040,2 provides that a person is guilty of rape in the first degree “when such person
engages in sexual intercourse with another person by forcible compulsion . . . .” This
provision meets the elements of the California rape statute, Penal Code section 261,
subdivision (a)(2), defining rape as “(a) . . . an act of sexual intercourse accomplished
with a person not the spouse of the perpetrator, . . . [¶] (2) Where it is accomplished
against a person’s will by means of force, violence, duress, menace, or fear of immediate
and unlawful bodily injury on the person or another.” The evidence before the court as to
the nature of defendant’s Washington rape conviction was sufficient to find that it
constituted a qualifying strike.
Washington Revised Code Annotated section 9A.40.020 (2013)3 defines first
degree kidnapping as, “intentionally abduct[ing] another person with intent . . . [¶]
(b) To facilitate commission of any felony or flight thereafter; or [¶] (c) To inflict
bodily injury on him or her . . . .” The term “abduct” is defined in Washington Revised
Code Annotated section 9A.40.010 as: “to restrain a person by either (a) secreting or
holding him or her in a place where he or she is not likely to be found, or (b) using or
2 Formerly Washington Revised Code Annotated section 9.79.170 (1977), recodified as section 9A.44.040 (1998). (See Wash. Adv. Legis. Serv. (1998), ch. 242, § 1 [eff. June 11, 1998].)
threatening to use deadly force.” (Wash. Rev. Code Ann., § 9A.40.010 (1).)4 The
statutory elements of first degree kidnapping in the State of Washington do not appear to
be identical to the elements of the California offense, inasmuch as no element of
asportation appears to be required to be found guilty of first degree kidnapping in
Washington. It is uncertain, in the absence of additional evidence concerning the nature
of the Washington offense, whether the record establishes that the Washington
kidnapping conviction constitutes a strike, although arguably defendant’s admission was
tantamount to an admission that the Washington kidnapping offense was equivalent to a
strike offense in California. We find it unnecessary to resolve the matter definitively,
however, because, in any case, at least three strike prior offenses were proven, which
were sufficient to support imposition of a third-strike sentence in the instant case.
V. The Evidence Was Sufficient to Support True Findings for Six Prior Prison Term
Enhancements
Defendant argues that the evidence was insufficient to support true findings as
to the six prior prison term enhancements, despite defendant’s admissions, because
the prosecution failed to establish that the prior prison terms were separate, or that the
five-year “washout” period had not elapsed. We disagree.
Defendant relies on People v. Epperson (1985) 168 Cal.App.3d 856, 863, for the
proposition that the admission of a prior prison term enhancement allegation must
specifically admit that the prior prison terms occurred within the past five years in order
4 Formerly Washington Revised Code Annotated, section 9A.40.010. (See Wash. Adv. Legis. Serv. 2011, ch. 336, § 363 [effective July 22, 2011].)
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to be valid. Defendant misapprehends the applicability of Epperson. There, it was plain
on the record, and the People had conceded, that the defendant did remain free from
prison custody, and the commission of a new felony, for more than five years. (Id. at
pp. 863-864.) Under those circumstances, the bare admission that a conviction had
occurred was not an admission with respect to the serving of a prison term, or the failure
to remain free of a new conviction for a period of five years. Here, the court described
the prior prison term enhancements, which defendant would be admitting, as, “you did
time in state prison, and you never got out for more than five years, including recently.”
The court proceeded to inquire as to each of the prior prison term enhancements, each of
which defendant admitted.5 Defendant admitted to separate felony convictions in 2003
5 The colloquy proceeded as follows: “THE COURT: . . . [¶] Okay. We’ll start with . . . the one-year priors. Is it true that on or about September 24th, 2003, in the County of Riverside, you were convicted of assault with a deadly weapon, a felony, and you did at least some time in state prison? Do you admit or deny? “THE DEFENDANT: Admit. “THE COURT: Second prior. August 30th, 1996, County of Riverside, convicted of 666, petty theft with a prior, and you did at least some time in state prison. Admit or deny? “THE DEFENDANT: Admit. “THE COURT: Okay. Third prior. April 1st, 1993, County of Riverside, convicted of the crime of 2800.2 Vehicle Code, recklessly evading a police officer, a felony, and you did some time in state prison. Admit or deny? “THE DEFENDANT: Admit. “THE COURT: Fourth prior. January 23rd, 1990, County of Riverside, a violation of 11377(a) of the Health and Safety Code, a felony, possession of a controlled substance, you did some time in State [sic] prison. You admit or deny? “THE DEFENDANT: Admit. “THE COURT: Fifth prior offense. November 9th, 1987, County of Riverside, a crime of burglary, a 459 of the Penal Code, a felony, and did you [spend] some time in state prison. Is that admit or deny? [footnote continued on next page]
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(assault with a deadly weapon) (ADW), 1996 (petty theft with a prior), 1993 (recklessly
evading an officer), 1990 (possession of controlled substance), 1987 (burglary), and 1978
(kidnapping). He directly admitted to serving a separate prison term for each offense.
The trial court prefaced the taking of the admissions with the statement that each prior
included the failure to remain free from prison custody for a period of five years.
The records before the court also showed that defendant was sentenced in
Washington State in 1978 to a maximum term of 20 years for the kidnapping offense.
With respect to the 1987 burglary conviction, defendant was sentenced to state prison in
1988 for a term of two years. Defendant was committed to state prison in 1992 for the
possession of a controlled substance for a term of one year four months. In 1993, he was
committed to prison on the evading arrest charge, for a concurrent term of three years.
Defendant was committed to prison for the petty-theft-with-a-prior offense for four years,
in 1996. He was committed to prison in 2003, for the assault with a deadly weapon, for a
term of six years.
The California Department of Corrections and Rehabilitation’s (CDCR) record of
defendant’s prison service indicated he was received in state prison in January 1988, in
connection with case No. CR-81652, the first degree burglary (fifth prison term prior),
[footnote continued from previous page] “THE DEFENDANT: Admit. “THE COURT: And sixth prior. November 20th, 1978, state [sic] of Washington, County of Spokane, convicted of the crime of kidnapping, a violation of 207 of the California Penal Code - - which they don’t use exactly the same numbers. I don’t know what numbers they use, but it’s the equivalent of 207 in California, and it’s a felony. And do you admit or deny? “THE DEFENDANT: Admit.”
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and paroled to Moreno Valley in October 1988. Defendant’s parole was suspended in
January 1989, and he was re-released in March 1989. Defendant was received back into
prison in April 1989 and re-released in July 1989. Defendant was returned to custody in
May 1990. He was paroled again in August 1990. Defendant was returned to custody in
October 1991. He was subject to an intake audit in March 1992, and ultimately
discharged on his prior term, but retained in case No. CR-41938 (possession of a
controlled substance, fourth prison term prior).
Defendant appears to have been paroled on the controlled substance offense in
August 1992. The parole audit note of that date recorded that a restitution fine of $200
was imposed as to the controlled substance offense.
Another file audit in April 1993 noted the imposition of a $1,000 fine in case
No. 47873, a conviction of vehicle theft on the same date and occasion as the
evading-an-officer case. Defendant was received into Soledad state prison in July 1993.
Defendant’s parole had been revoked in April 1993, and he was apparently discharged on
case No. CR-41938 (controlled substance offense), but retained in case Nos. CR-47873
(vehicle theft) and CR-48136 (evading an officer, third prison term prior). Defendant
was paroled in November 1994, and appears to have been discharged from parole by
operation of law as of December 1995.
In September 1996, defendant was received at Calipatria State Prison in
connection with case No. CR-69435, petty theft with a prior (second prison term prior).
He was paroled in August 1999, but his parole was suspended and he was returned to
prison in March 2000. Defendant was paroled again in September 2000, and again
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suspended a month later in October 2000. He was released on parole yet again in March
2001, and September 2001, but a hold was placed on him in February 2002, when he was
arrested. He spent 300 days in custody on that revocation, until he was paroled in
December 2002. Defendant did not long remain out of custody, however, as he suffered
a revocation in January 2003, an arrest and reinstatement in May 2003, and a return to
custody in July 2003.
Defendant was processed for intake at a state prison facility in connection with
case No. RIF110285 (assault with a deadly weapon, first prison term prior) in October
2003. Defendant was discharged in case No. CR-69435 as of January 2004, but he was
retained on case No. RIF110285 in July 2004. CDCR calculated defendant’s parole
release date in February 2008, with an expected release date in April 2008.
Defendant was in fact released on parole in April 2008, but was returned to prison
for suspensions or revocations several times in 2009 and 2010. The instant case was filed
in July 2010.
The records of defendant’s prison custody clearly show that he did not remain free
from custody for a period of five years on any of the California convictions. (See also
People v. Cardenas (1987) 192 Cal.App.3d 51, 61 [“[A]n admission of prior convictions
where the charging information specifically alleges the convictions resulted in prior
separate prison terms is deemed an admission such prison terms were separately
served.”].)
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The evidence, whether of defendant’s admissions alone or together with the
documentary evidence, was fully sufficient to support the court’s true findings as to all
six prison term prior enhancements.
DISPOSITION
The issues raised on appeal deal solely with proof of the sentencing enhancement
allegations. As noted above, the trial court properly admitted into evidence and
considered the documentary evidence submitted to prove the prior conviction allegations.
The evidence was sufficient to support findings that defendant had suffered at least two
prior strike convictions; he was properly sentenced as a third striker. The evidence was
also sufficient to support true findings as to each of the six prior prison term one-year
enhancements; the prior prison term enhancements were properly imposed. The
judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MCKINSTER J. We concur:
HOLLENHORST Acting P. J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the evidence was sufficient to support the trial court's findings regarding the defendant's prior strike convictions and prison term enhancements, noting that the defendant's admissions and the documentary evidence in the record were adequate.
Issues
Whether the trial court properly considered documentary evidence of prior convictions despite the absence of an explicit statement of admission in the reporter's transcript.
Whether the evidence was sufficient to establish that the defendant's prior convictions qualified as strike offenses under California law.
Whether the defendant's admissions were sufficient to support the true findings for six prior prison term enhancements.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“In accordance with this principle, we conclude that the exhibits were admitted into evidence and properly considered by the trial court.”
“The evidence in the record was clearly sufficient to sustain the trial court’s determination that the 1987 burglary conviction was a strike prior.”
“We find it unnecessary to resolve the matter definitively, however, because, in any case, at least three strike prior offenses were proven, which were sufficient to support imposition of a third-strike sentence in the instant case.”