P. v. Elemen CA6

Filed 5/1/13 P. v. Elemen CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H038216 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1100777)

v. DANIEL ROBERT ELEMEN,

Defendant and Appellant.

In this appeal, Daniel Elemen (appellant) challenges the trial court's finding that his juvenile adjudication for assault with a deadly weapon qualified as a strike within the meaning of the "Three Strikes" law (Pen. Code, §§ 1170.12, 667, subds. (b)-(i)). Appellant argues that the finding is not supported by substantial evidence. For reasons that follow, we find this issue to be moot. Background On July 21, 2011 the Santa Clara County District Attorney filed an information in which appellant was charged with first degree residential burglary (§§ 459, 460, subd. (a).)1 The information contained two allegations; one, that a person, not an accomplice was present in the residence during the commission of the burglary and two, that appellant had a prior strike conviction based on a prior juvenile adjudication (Welf. & Inst. Code, § 602) for assault with a deadly weapon (§ 245, subd. (a)(1)). 1 All unspecified section references are to the Penal Code.

On September 6, 2011, appellant pleaded no contest to the first degree burglary charge, admitted the allegation that a person was present other than an accomplice at the time of the burglary, and admitted that he had suffered a prior juvenile adjudication. However, he reserved the right to challenge that the juvenile adjudication was a strike. The court told appellant that he would receive no more than four years in state prison.2 Following appellant's no contest plea, the court found that appellant's juvenile adjudication for assault with a deadly weapon was a strike; the court relied on this court's opinion in In re Pedro C. (1989) 215 Cal.App.3d 174.3 Thereafter, appellant filed a motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, asking the court to exercise its discretion under section

2 The record is ambiguous as to whether this was a plea agreement or the court was giving an indicated sentence. As charged, the maximum sentence for appellant's offense was 12 years in state prison, or if a Romero motion was granted, six years, which would indicate that the prosecution had agreed to a reduction in appellant's sentence. On the other hand, the court told appellant "the agreement with the Court is that you will receive no more than four years in the state prison." However, later the court told appellant that at the time of judgment if the sentencing judge withdrew his or her "approval of this agreement" he would be permitted to withdraw his plea. 3 In In re Pedro C., supra, 215 Cal.App.3d 174, the minor admitted committing a violation of former section 245, subdivision (b), which proscribed the commission of "an assault with a deadly weapon or instrument, other than a firearm, or by any means likely to produce great bodily injury upon the person of a peace officer or fire[fighter] engaged in the performance of his or her duties . . . ." Specifically, the offense admitted was " 'an assault with a deadly weapon or instrument, to wit: motor vehicle upon . . . . a peace officer . . . .' " (Id. at p. 182.) This court held that "[Welfare and Institutions Code] section 707(b)(14) embraces violations of Penal Code section 245, subdivision (b)[,] which are charged as assaults with deadly weapons or instruments, rather than as assaults by means likely to produce great bodily injury." (Ibid.) We noted that section 707(b) lists "serious felonies," and reasoned, "Given this statutory scheme, for this court to determine that assault with a deadly weapon is not a section 707, subdivision (b) offense would be to elevate form over substance. [Citation.] ' "A deadly weapon is one likely to produce death or great bodily injury." ' [Citations.] Necessarily, then, assault with a deadly weapon includes assault by means likely to produce great bodily injury. . . . [T]herefore . . . appellant's Penal Code section 245, subdivision (b) offense falls within the purview of section 707, subdivision (b). . . ." (Id. at pp. 182-183.) 2