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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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



                                              2.
              “THE COURT: Certainly.

              “[DEFENSE COUNSEL]: I believe that it’s a [section] 243[,
       subdivision ](a)(1). I believe it would have been alleged and what I intend
       to do prior to sentencing is pull the file, see how it was pled.

              “[PROSECUTOR]: It’s [section] 245[, subdivision ](a)(1).[3]

              “[DEFENSE COUNSEL]: [Section] 245(a)(1).

              “THE COURT: Okay. And then that will be for a four-year lid, low
       term times two depending on the validity of the unalleged strike, and we’ll
       show that the People’s motion to amend to allege a [section] 667(e)
       violation on or about July 20th, 1993, for a [section] 245(a)(1) [prior
       conviction].

              “And that is as a—no more than four years in the Department of
       Corrections as a lid with the defense and People to review the validity of
       that being a strike. [¶] [Defense counsel], is that your understanding?

               “[DEFENSE COUNSEL]: It is in part, your Honor. [¶] The other
       thing I wanted to put on the record is that I intend to file a sentencing
       statement and written Romero motion[4] in this matter. So it’s a lid both
       with respect to the validity of the strike and also make a pitch at sentencing.

              “[PROSECUTOR]: And if I may, your Honor.

              “THE COURT: Miss [Prosecutor].

               “[PROSECUTOR]: The strike is alleged just [as] a prison prior, it’s
       actually October 27th, 1993, is the conviction date. And it is in the
       complaint right after Count 2 the prior just alleges only as prison prior not a
       strike. [¶] And in addition to that, the People intend to file an objection to
       the defense Romero and sentencing statement just so the record is clear.

               “THE COURT: Okay. There’s no agreement as to anything other
       than it is no more than the low term times two depending on the validity of


3      Henceforth, we refer to section 245 subdivision (a)(1) as section 245(a)(1).
4       A “Romero motion” is a motion to dismiss a prior strike conviction in the interest
of justice under section 1385. (People v. Superior Court (Romero) (1996) 13 Cal.4th
497.)



                                             3.
       the strike that is now the October 27th, 1993, allegation. [¶] … [¶] Then,
       … we’ll grant[] People’s motion to allege a [section] 667(e) allegation.”
       The court then addressed defendant regarding his plea form:

               “THE COURT: I’ll accept your no contest plea, make a finding of
       guilt as to that charge. [¶] [Defendant], it is further alleged that you have
       one prior strike, the 1993 [section] 245(a)(1). [¶] Do you admit that you
       have that strike?

              “[DEFENSE COUNSEL]: Your Honor, if I may.

              “THE COURT: Sure.

               “[DEFENSE COUNSEL]: Can he admit conditioned upon the
       validity of? I don’t know if the 1993 [section] 243[sic](a)(1) could or could
       not be.

             “THE COURT: Do you admit you have the conviction listed as
       October 27, 1993, alleged as [section] 245(a)(1), not necessarily a strike,
       but you have that conviction?

              “THE DEFENDANT: [Section] 245(a), yes, your Honor.

              “THE COURT: Thank you. I’ll accept the admission.”
       On defendant’s plea form, he stated that he admitted the following offense and
prior conviction: “PC 243(D)” and “667(e) contingent upon validity of strike [¶]
7.20.93 SCO54944A PC 245(a)(1),” and that he agreed to the sentence of “LT [lower
term] 2 x 2 for 4 y[ears] CDC as a lid.” At the end of the document, he again noted that
he admitted the prior conviction “contingent upon validity.”
       The clerk noted in the minutes of the hearing that the complaint was amended and
a section 667(e) allegation was added to count 2, that defendant pled to count 2, that the
lower term of four years “DEPEND[ED] ON THE VALIDITY OF THE STRIKE,” and
that “*** DEFENDANT [WAS] TO ADMIT STRIKE PRIOR IF VALID ***”
       At a January 29, 2013 hearing, the clerk again noted in the minutes:
“RE: DEFENDANT TO ADMIT STRIKE PRIOR IF VALID.” Defendant stated that he
wished to withdraw his plea and the court granted a continuance for that reason.


                                             4.
       At a February 13, 2013 hearing, the clerk noted in the minutes: “RE: STRIKE
PRIOR.” The trial court conducted an in camera Marsden5 hearing to relieve counsel
and thereafter denied the motion.
       At another hearing later that day, the clerk noted in the minutes: “RE: STRIKE
PRIOR” and “STATUS: DEFENDANT TO ADMIT STRIKE PRIOR IF VALID.” The
court again granted a continuance to allow defendant to research whether there was a
legal basis for his motion to withdraw the plea.
       At the March 13, 2013 sentencing hearing, the probation report was entered into
evidence and considered by the court. The probation report noted that the original
charges had been amended to include count 2, a violation of section 243, subdivision (d),
“w/PC 667(e) (Amended)” The conditions of defendant’s plea were noted as follows:
“The defendant to serve no more than four years in prison; Count One dismissed;
remaining allegations stricken.”
       The lengthy list of defendant’s criminal history included a crime committed on
July 20, 1993 described as follows: “PC 245(a)(1) (def attacked fthr-in-law w/a util
knife; fthr-in-law reqrd 18 stitches on arm and 8 stitches on finger)” for which defendant
was committed to prison for two years. The felony crimes defendant subsequently
committed in February 1998, November 2001, and October 2006 each included an
allegation pursuant to section 667(e).
       In analyzing the sentencing options, the probation officer stated: “The defendant
qualifies for punishment in California Department of Corrections and Rehabilitation
based on the current offense and a prior conviction for a serious or violent offense.”
Regarding probation eligibility, the probation officer stated: “The defendant is statutorily
ineligible for a grant of felony probation pursuant to Penal Code Section 667(c)(2), in
that he has a strike prior.”
5      People v. Marsden (1970) 2 Cal.3d 118.



                                             5.
       The probation officer recommended that probation be denied and defendant be
sentenced on “Count Two: PC 243(d) w/PC 667(e)” [¶] “for the low term of four years”
pursuant to a negotiated plea.
       Defense counsel informed the court he wanted to present information in
mitigation, stating: “In particular, I’ve had an investigator go out and talk to the victim in
the 1993 strike case, which is the admitted 667(e) allegation…. He signed a declaration.
I’d like to present that to the court as well as my investigator’s report.” Defense counsel
submitted to the court a letter dated January 25, 2013, from defense counsel’s
investigator (the Public Defender’s investigator) to defense counsel, explaining that the
investigator interviewed defendant’s former father-in-law, the victim of defendant’s 1993
assault. The father-in-law remembered the assault and showed the investigator the
resulting scar on his right arm. The investigator explained to the father-in-law that
defendant had “a current case that could be greatly effected [sic] by the fact that they
could use the prior case as a strike against him in his current case.” The father-in-law
believed defendant had served his time for the assault. He signed a declaration stating
that he was the victim in the 1993 case (#SC054944A) “wherein [defendant] was
convicted of assault with a deadly weapon,” and he believed “that [defendant] was
convicted of this crime against [him], that he served his time for that crime, and should
receive no further punishment for the wrong done against [him].”
       Defense counsel argued:

               “Your Honor, I would only point out to the court that since 2006,
       with the exception of some misdemeanor conduct, [defendant] has been
       relatively crime free. The strike is from 1993. Nearly 20 years old. [¶]
       For those reasons, I’d request that the Court exercise its discretion under
       People v. Romero. [¶] I’d also ask the Court [to] entertain a request for
       felony probation. I think in this particular matter, given the desires of the
       complaining witness [in the present case], given the desires of the victim …
       in the strike case, [defendant] would benefit from a grant of felony
       probation[;] it would force him to address the underlying issues ….”



                                              6.
       The prosecutor responded by describing defendant’s recent history, then stating:

              “So I’d ask the Court to impose the four years and deny a Romero
       [motion] and deny—I don’t think probation is appropriate in this case. And
       also considering the 1993 offense was a GBI [great bodily injury], he
       assaulted the person, the person received stitches. So I don’t think he is a
       proper candidate for []either a Romero or probation.”
       The court ruled as follows:

               “Counsel, first addressing the Romero motion, the nature of the
       current offense in the abstract is more serious than many other felonies in
       that in this particular case, the victim, even though she was accidentally
       shoved, sustained a fracture to the nose…. [¶] … [¶] This case that is
       being asked to be reviewed is a 1993 case. It is of significant age. But as
       pointed out by the People, the defendant has had prison commitments in
       ’98, violations of probation in 2001, … violation of parole in 2001, prison
       commitment 2002, violation of parole 2005, prison commitment 2006,
       violation of parole 2009, 2010, 2012. [In] 2012 the defendant has been
       convicted of … battery on the same victim in a relationship on two separate
       occasions. [¶] It appears that even after multiple opportunities to reform
       this particular behavior, the defendant has not. And at this point it would
       be inappropriate to exercise discretion to strike even a strike as old as the
       1993 strike. [¶] Therefore, as to Count 2, the [section] 273[,
       subdivision ](d) with one [section] 667(e), probation is denied. He is
       sentenced to the Department of Corrections for the low term [of] four
       years.”
       The clerk noted in the minutes: “ALLEGATION … PURSUANT TO PC 667(E)
AS ALLEGED IN COUNT 2 IS ADMITTED.” The clerk also noted the court denied
probation and sentenced defendant to four years in prison, based on doubling the sentence
pursuant to section 667(e).
       The abstract of judgment reflects a conviction on count 2 for a violation of
section 243, subdivision (d) with a four-year sentence, noting that defendant was
sentenced pursuant to section 667, subdivisions (b)-(i).




                                            7.
                                      DISCUSSION
       Defendant contends he admitted only a prior conviction for an assault under
section 245(a)(1), and not a conviction for assault committed with a deadly weapon.6 We
disagree and conclude the record demonstrates that defendant did ultimately admit the
prior strike conviction. As our excerpts from the record show, defendant admitted the
prior conviction contingent upon proof that it constituted a strike. Then, defendant’s own
attorney provided evidence that the prior conviction was for assault with a deadly
weapon. Defense counsel described the prior conviction as “the 1993 strike case, … the
admitted 667(e) allegation” and provided a signed declaration by the victim, stating that
defendant had been convicted of assault with a deadly weapon. Defense counsel
requested that the trial court dismiss the 1993 prior strike conviction pursuant to Romero,
an entirely pointless request unless the parties understood the prior conviction to be a
strike—which they clearly did: the prosecutor argued against the motion, and the court
denied it, refusing to exercise its discretion to dismiss “the 1993 strike.” The probation
report provided further evidence that the prior conviction was “for a serious or violent
offense” and defendant had “a strike prior.” (People v. Arbuckle (1978) 22 Cal.3d 749,
755 [diagnostic report and sentencing recommendation considered reliable]; People v.
Evans (1983) 141 Cal.App.3d 1019, 1021 [probation reports considered reliable].)
       We see ample evidence, provided by both defendant and the probation report, to
prove that defendant’s prior conviction was for assault with a deadly weapon and
therefore qualified as a strike. Once that proof was produced, the contingency of

6      Defendant’s argument relies on the former version of section 245(a)(1), which
included both assault committed with a deadly weapon and assault with force likely to
produce great bodily injury. At that time, an admission of an assault under
section 245(a)(1) was ambiguous as to which assault was being admitted—and it
mattered because only the first constituted a strike offense. (See People v. Fox (2014)
224 Cal.App.4th 424, 435, fn. 8.) In 2011, the statute was amended to separate the two
assaults into two different provisions, section 245(a)(1) and 245(a)(4).



                                             8.
defendant’s admission dissolved. We also note that the trial court would not have
entertained defendant’s Romero motion to dismiss the prior strike conviction unless the
court had (at least impliedly) already found it to be a prior strike conviction.
       We conclude defendant admitted the prior strike conviction and the doubled
sentence under section 667(e) was proper.
                                      DISPOSITION
       The judgment is affirmed.




                                              9.
