People v. Maldonado

Opinion

KING, J. In this case we strike a five-year sentence enhancement for a 1950 murder conviction in Texas because the minimum elements of the prior conviction did not include all the elements of a serious felony in California.

I.*

II.

A jury convicted Maldonado of battery with serious bodily injury (Pen. Code, § 243, subd. (d)) and assault with a deadly weapon (Pen. Code, [865]§ 245, subd. (a)(1)), and found to be true allegations of personal use of a deadly weapon (Pen. Code, § 12022, subd. (b)) and injury to a person 60 years of age or older (Pen. Code, § 1203.09, subd. (f)). The court also found to be true an allegation that Maldonado had a prior serious felony conviction for murder in Texas in 1950 (Pen. Code, § 667).

The court sentenced Maldonado to nine years’ imprisonment, consisting of the middle term of three years for battery with serious bodily injury, a one-year enhancement for personal use, and a five-year enhancement for the 1950 murder conviction.

III.*

IV.

Maldonado correctly contends the five-year enhancement for the 1950 Texas murder conviction must be stricken because the minimum elements of the conviction did not include “all of the elements of any serious felony” in California. (Pen. Code, § 667, subd. (a).)

The Texas conviction was for “murder with malice.” The proof of the conviction established only the minimum elements of this crime. (People v. Piper (1986) 42 Cal.3d 471, 475 [229 Cal.Rptr. 125, 722 P.2d 899]; People v. Jackson (1985) 37 Cal.3d 826, 834 [210 Cal.Rptr. 623, 694 P.2d 736].)

Under Texas law in 19501 malice could be implied where death resulted from an act committed “so recklessly and wantonly as to manifest a depravity of mind and disregard for human life.” (Brewer v. State (1940) 140 Tex.Crim. 9 [143 S.W.2d 599, 602]; accord, Cockrell v. State (1938) 135 [866]Tex.Crim. 218 [117 S.W.2d 1105, 1109].) There was no requirement that the defendant had been subjectively aware of the risk created; it was sufficient that a reasonable person would have been aware of the risk. (See Collings, Negligent Murder—Some Stateside Footnotes to Director of Public Prosecutions v. Smith (1961) 49 Cal.L.Rev. 254, 278 [describing a 1919 Texas decision as “written in such a way as to give the impression that the test is completely objective and that awareness of the risk by the defendant is immaterial”]; Moreland, The Law of Homicide (1952) pp. 39-41 & fn. 40 [citing only Alabama, Minnesota, and North Carolina decisions exemplifying a line of cases adopting the subjective test].) For example, in Brewer v. State, supra, 143 S.W.2d at page 601, the court said that the owner of an automobile who had allowed a drunken companion to drive the car recklessly, causing a death, could be held “responsible as a principal for whatever might result therefrom, provided it could have been reasonably anticipated as a result.” (Italics added.)