People v. Turney CA5

Filed 5/20/14 P. v. Turney CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F066962 Plaintiff and Respondent, (Super. Ct. No. BF144015A) v.

ALLEN ROSS TURNEY, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Michael B. Lewis, Judge. Rex A. Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Cornell, Acting P.J., Detjen, J. and Franson, J.

Defendant Allen Ross Turney pled no contest to a felony charge that arose from his assault on his girlfriend. He admitted a prior conviction, contingent upon proof that it constituted a strike under Penal Code section 667, subdivision (e).1 Part of the Three Strikes law, section 667(e) provides for doubling of the sentence when the defendant has one prior serious and/or violent felony conviction (“strike” or “strike conviction”).2 On appeal, defendant contends his doubled sentence was unlawful because he did not admit, the prosecution did not prove, and the trial court did not find that his prior conviction was a strike. We disagree and will affirm. BACKGROUND On September 17, 2012, the Kern County District Attorney charged defendant with willful infliction of corporal injury resulting in a traumatic condition (§ 273.5, subd. (a); count 1) and unlawful use of force or violence upon a person resulting in serious bodily injury (§ 243, subd. (d); count 2). The charges included various allegations, but no allegations pursuant to section 667(e). On November 29, 2012, at the change of plea hearing, the following occurred:

“[THE COURT:] He—he will be admitting—does have an unalleged 1993 strike? Is that it?

“[PROSECUTOR]: Yes, your Honor. And I—

“[DEFENSE COUNSEL]: If I may, your Honor.

1 All statutory references are to the Penal Code unless otherwise noted. Henceforth, we refer to section 667, subdivision (e) as section 667(e). 2 Section 667(e) provides in relevant part: “(e) For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has one or more prior serious and/or violent felony convictions: [¶] (1) If a defendant has one prior serious and/or violent felony conviction … that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.”