P. v. Anderson CA2/6

Filed 6/6/13 P. v. Anderson CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B238025 (Super. Ct. No. F423963) Plaintiff and Respondent, (San Luis Obispo County)

v.

BILLY DEWAYNE ANDERSON

Defendant and Appellant.

Billy Dewayne Anderson appeals a judgment entered following retrial of his prior foreign state convictions and resentencing. We reverse and remand for further proceedings regarding the foreign state convictions, but otherwise affirm. FACTS AND PROCEDURAL HISTORY On February 4, 2009, a jury convicted Anderson of assault with intent to commit rape during the commission of a burglary, residential burglary, residential robbery (two counts), and assault likely to cause great bodily injury. (Pen. Code, §§ 220, subd. (b), 459, 211, 245, subd. (a).)1 In a separate proceeding, the trial court found that Anderson suffered four Washington state convictions that were also serious felony and strike convictions within the meaning of sections 667, subdivision (a), 667, subdivisions (b)-(i), and 1170.12, subdivisions (a)-(d). The court sentenced Anderson to 137 years to life in prison. He appealed.

1 All statutory references are to the Penal Code.

In an unpublished opinion, we concluded that the record did not support the trial court's conclusion that the Washington convictions (one grand theft conviction and three burglary convictions) were serious felonies or strike convictions pursuant to California law. (People v. Anderson (Dec. 20, 2010, B217514).) In particular, we decided that the record did not provide sufficient evidence that Anderson intended to permanently deprive the owners of their property, as required by California but not Washington law. We remanded the matter for retrial regarding the prior convictions and resentencing. At the retrial, the prosecutor submitted additional evidence regarding the four Washington convictions. Following argument by the parties, the trial court found each of the four convictions to be a serious felony and strike conviction pursuant to California law. The court relied upon Washington court orders of restitution as well as Anderson's statement that the purpose of one burglary was to purchase drugs, to support the reasonable inference that Anderson intended to permanently deprive his burglary victims of their property. The court also noted that the record did not establish that Anderson had any type of relationship with his victims that would support the inference that "[he] was only borrowing" the property. The court then resentenced Anderson to the same sentence of 137 years to life in prison. Anderson appeals and contends that the admissible evidence on retrial does not establish that his four Washington convictions constitute serious felonies or strikes pursuant to California law. DISCUSSION Anderson argues that the evidence does not establish that he intended to permanently deprive his Washington theft and burglary victims of their property. He asserts that the evidence upon which the trial court relied is outside his record of conviction. A prior conviction from another jurisdiction qualifies as a serious felony or a strike if the conviction was "for an offense that, if committed in California, is punishable by imprisonment in the state prison. A prior conviction of a particular felony