Filed 1/9/15 P. v. Amaya CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E059609

v.                                                                       (Super.Ct.No. RIF1201528)

ARMANDO RUBEN AMAYA,                                                     OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Jeffrey J. Prevost, Judge.

Affirmed with directions.

         Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Melissa Mandel and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and

Respondent.




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       Defendant Armando Ruben Amaya is serving 26 years to life as a third-striker

after a jury convicted him of robbery, burglary and dissuading a witness. Defendant

argues the prosecution presented insufficient evidence to prove that one of his prior

convictions qualified as a strike. He also contends the trial court failed to either strike or

impose the sentence for an arming enhancement attached to the robbery conviction, and

so the matter should be remanded. We conclude that substantial evidence supports the

challenged strike prior, but remand to the trial court so it can either strike or impose the

sentence for the arming enhancement.

                                  FACTS AND PROCEDURE

       On November 20, 2011, defendant and his brother robbed a convenience store at

gunpoint (defendant’s brother held the gun), took the clerk’s wallet and cell phone, and

emphasized that they now knew where the clerked lived.

       On April 26, 2013, the jury convicted defendant of all charges—robbery (Pen.

Code, § 211),1 burglary (§ 459) and dissuading a witness (§ 136.1, subd. (b)(1)). The

jury also found true the allegation as to the robbery that defendant participated as a

principal knowing that another principal was armed with a firearm (§ 12022, subd. (d)).

       On July 22, 2013, after a court trial on defendant’s prior convictions, the court

found true that defendant had a prison term prior (§ 667.5, subd. (b)) and two strike priors

(§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A)). The court then sentenced

defendant to a total of 26 years to life in prison as follows: 25 years to life for the


       1   All section references are to the Penal Code unless otherwise indicated.


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robbery, 25 years to life for the burglary, stayed pursuant to section 654, 25 years to life

for dissuading a witness, to be served concurrently, plus one consecutive year for the

prison prior. The court did not mention the arming allegation.

       This appeal followed.

                                        DISCUSSION

       1. Sufficiency of the Evidence to Prove Strike Prior

       Defendant argues that the record was insufficient to establish that his 2001

conviction from San Bernardino County, for violation of section 245, subdivision (a)(1),

was a serious or violent felony conviction. The text of section 245, subdivision (a)(1), in

2001 was as follows: “(a) (1) Any person who commits an assault upon the person of

another with a deadly weapon or instrument other than a firearm or by any means of force

likely to produce great bodily injury shall be punished by imprisonment in the state

prison for two, three, or four years, or in a county jail for not exceeding one year, or by a

fine not exceeding ten thousand dollars ($ 10,000), or by both the fine and

imprisonment.”

       Assault with personal use of a deadly weapon is a serious felony; assault by means

of force likely to cause great bodily injury is not. (People v. Delgado (2008) 43 Cal.4th

1059, 1063, 1065.) Consequently, a record which merely shows that the defendant was

convicted of violating section 245, subdivision (a)(1), without evidence that the

conviction involved personal use of a deadly weapon, is insufficient to prove a prior

serious felony allegation. (Delgado, at p. 1066.)




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       “A common means of proving the fact and nature of a prior conviction is to

introduce certified documents from the record of the prior court proceeding and

commitment to prison, including the abstract of judgment describing the prior offense.”

(Delgado, supra, 43 Cal.4th at p. 1066). From these certified documents, the trial court

can draw reasonable inferences in deciding whether the defendant suffered the prior.

(Id. at p. 1066.) “[I]f the prior conviction was for an offense that can be committed in

multiple ways, and the record of conviction does not disclose how the offense was

committed, a court must presume the conviction was for the least serious form of the

offense.” (Id. at p. 1066.)

       When a defendant challenges the sufficiency of documentary exhibits at a

bifurcated trial on strike priors, a reviewing court’s role is limited to deciding whether,

when viewed in the light most favorable to the judgment, the documents disclose

substantial evidence, e.g., evidence which is reasonable, credible, and of solid value, such

that a reasonable trier of fact could find the prior convictions true beyond a reasonable

doubt. (Delgado, supra, 43 Cal.4th at p. 1067; People v. Garrett (2001) 92 Cal.App.4th

1417, 1433.) A reviewing court should not reweigh conflicts in the evidence but may

consider reasonable inferences that can be drawn from the record. (People v. Ochoa

(1993) 6 Cal.4th 1199, 1206.)

       Here, the trial court had available to it the following evidence when it determined

the 2001 conviction was a serious felony. The evidence is reviewed in chronological

order of its creation.




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       First, the complaint filed November 13, 2001. In it, the People describe count 1 as

follows: “On or about October 16, 2001, in the above named judicial district, the crime of

ASSAULT WITH DEADLY WEAPON, in violation of PENAL CODE SECTION

245(A)(1), a felony, was committed by Armando Ruben Amaya, who did willfully and

unlawfully commit an assault upon Jose Luis Ventura with a deadly weapon, to wit,

Shotgun.” The People allege the identical crime committed against two other victims in

counts 2 and 3. Further, the complaint contains a notice in count one that “The above

offense is a serious felony within the meaning of Penal Code section 1192.7(c).” This

clearly indicates the People charged defendant with assault with a deadly weapon, which

is a strike offense. As the People point out, the record contains no evidence, at all, that

the charge was reduced to assault other than with a deadly weapon.

       Second, the plea form. Filed on February 4, 2002, the hand-written notation states

that defendant pled to “245(a) PC (assault w/deadly weapon.)” This clearly indicates

defendant pled guilty to assault with a deadly weapon, which is a strike offense.

       Third, the abstract of judgment, dated March 4, 2002, shows defendant was

convicted of “PC 245(A)(1) ASSAULT WITH DEA.” This appears to us as well to

indicate assault with a deadly weapon, which is a strike offense, rather than the non-strike

assault by any means likely to produce great bodily injury. Defendant argues that, as

with the case print described below, this could have been an attempt by the clerk to notate

the conviction with a general description of the statute, without specifying whether it was

for deadly weapon use or for likely to cause great bodily injury. We do not see that this

is a reasonable interpretation of the notation, because it contains NO elements of section


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245, subdivision (a)(1), other than assault with a deadly weapon. In any case, even if we

were to accept defendant’s argument on this point, as with the case print described below,

this would render the abstract of judgment simply unhelpful as to the issue of whether the

2001 prior was a serious felony, rather than indicating the felony was not serious or

making the record as a whole anything less than clear on that point.

       Fourth, the case print made on September 21, 2012, describes the offense to which

defendant pled guilty as “245(A)(1) PC ASSAULT WITH DEADLY WEAPON NOT

FIREARM OR FORCE: GBI LIKELY”. This seems to us like a generic description of

section 245, subdivision (a)(1), rather than evidence either way as to whether the

conviction was for assault with a deadly weapon, a serious felony. In addition, the case

print also lists the two dismissed counts, counts 2 and 3, in the same manner – “245(A)(1)

PC ASSAULT WITH DEADLY WEAPON NOT FIREARM OR FORCE: GBI

LIKELY,” despite the fact that they were, also, clearly defined as assault with a deadly

weapon in the complaint. At most, we conclude that the case print is not helpful to

resolve this issue.

       To conclude, the complaint, the plea form and the abstract of judgment each

clearly indicate that defendant pled guilty to assault with a deadly weapon, which is a

serious felony. The case print is not useful to the determination in either direction. These

documents taken as a whole disclose substantial evidence to support the trial court’s

finding beyond a reasonable doubt that the 2001 conviction was a serious felony for

purposes of the Three Strikes law.




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       2. Remand for Pronouncement of Judgment on the Arming Enhancement

       Defendant argues, the People concede, and this court agrees that the trial court

erred when it failed to pronounce judgment on the arming enhancement under section

12022, subdivision (d), as to the robbery count. Although the abstract of judgment and

minute order each reflect a one-year consecutive term, the trial court did not orally

pronounce judgment on the arming enhancement at the sentencing hearing. The trial

court is required to either impose or strike the allegation (§ 12022, subds. (d) & (f)).

Given the court’s omission, the sentence on the arming enhancement is unauthorized and

subject to correction for the first time on appeal. (People v. Bradley (1998) 64

Cal.App.4th 386, 391.) Remand for correction is the appropriate remedy. (People v.

Neeley (2009) 176 Cal.App.4th 787, 799.)




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                                          DISPOSITION

       The matter is remanded to the trial court with directions to either impose or strike

the arming enhancement under section 12022, subdivision (d). In all other respects, the

judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                GAUT
                                                                                          J.*


We concur:

RAMIREZ
                        P. J.

KING
                           J.




       * Retired Associate Justice of the Court of Appeal, Fourth Appellate District,
Division Two, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.


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