In Re Cruse

2 Cal.Rptr.3d 548 (2003) 110 Cal.App.4th 1495 In re Myron Eric CRUSE, on Habeas Corpus.

No. B164036. Court of Appeal, Second District, Division Five.

July 31, 2003. Rehearing Denied August 12, 2003. Jonathan B. Steiner, Los Angeles, and Richard Fitzer, under appointments by the Court of Appeal, for Petitioner.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, [549] Supervising Deputy Attorney General, William T. Harter, Deputy Attorney General, for Respondent.

TURNER, P.J.

Defendant, Myron Eric Cruse, has filed a habeas corpus petition challenging his conviction for possession of marijuana for purposes of sale resulting from a guilty plea and an admission that he previously had been convicted in 1986 of a violent or serious felony within the meaning of Penal Code[1] sections 667, subdivisions (b) through (i), 667.5, subdivision (c), 1170.12, and 1192.7, subdivision (c). Defendant contends that he was denied effective representation by his attorney, Lupe Oronoz-Crawford, before entering his guilty plea because he was misadvised as to whether an alleged prior serious felony conviction would have subjected him to enhanced potential life sentencing pursuant to sections 667, subdivision (e)(2)(A)(ii) and 1170.12, subdivision (c)(2)(A)(ii). We now conclude: Ms. Oronoz-Crawford correctly concluded defendant was facing a potential life term if he was convicted after a trial; both prior felony convictions which arose out of a 1986 sexual assault case were serious felonies because defendant personally inflicted great bodily injury on the victim by breaking her jaw; the fact that the victim's jaw was broken and he therefore inflicted great bodily injury within the meaning of section 1192.7, subdivision (c)(8) was proven by her 1986 preliminary hearing testimony; and an unsworn and unauthenticated medical report which was not received in evidence in 1986 and unsupported by any foundation to support a finding the document falls within an exception to the hearsay rule was inadmissible to contradict the victim's testimony that her jaw was broken. We therefore deny the petition.

Charged with cocaine possession in violation of Health and Safety Code section 11350, subdivision (a), there were two alleged prior convictions which subjected defendant to enhanced sentencing pursuant to sections 667, subdivision (e)(2)(A)(ii) and 1170.12, subdivision (c)(2)(A)(ii). It was alleged defendant had previously been convicted in 1986 of violations of sections 245, subdivision (a)(1) and 288a, subdivision (f). Defendant's attorney, Ms. Oronoz-Crawford, advised defendant that if both of the alleged prior violent or serious convictions allegation were sustained he would be subject to a potential 25-year-to-life sentence. Ms. Oronoz-Crawford also knew that in assessing whether the offenses were qualifying crimes, the trier of fact could review the preliminary hearing transcript of the 1986 case. She further knew that the preliminary hearing transcript of the 1986 case revealed that the victim's jaw was personally broken by defendant as part of the sexual assault.