Filed 3/25/13 P. v. Cortes CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT

THE PEOPLE,                                                          B239895

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA027770)
         v.

ROMAUALDO AGUILAR CORTES,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Laura F.
Priver, Judge. Affirmed as modified.


         Johanna R. Shargel, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Lawrence M. Daniels and
Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.


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       We affirm appellant Romaualdo Aguilar Cortes‟s conviction for voluntary
manslaughter and modify his conduct credits. On appeal, appellant argues the
information charging him with murder should have been dismissed because he previously
was “convicted of murder in a Mexican court, and served time.” Appellant‟s argument
lacks merit because insufficient evidence supports his statement that he suffered a
conviction in Mexico based on the same conduct underlying his California conviction.
Appellant failed to provide a judgment or minute order indicating he was convicted of
any offense in Mexico and therefore failed to satisfy his burden of demonstrating a
foreign conviction. We affirm.
                               FACTS AND PROCEDURE
       Evidence at appellant‟s preliminary hearing showed that on September 29, 1990,
appellant, his brother, and Jorge Silverio were together in Los Angeles. Silverio insulted
appellant and may have put appellant in a headlock. Appellant stabbed Silverio in the
chest with a knife. The next day, appellant fled to Mexico. Silverio died of one stab
wound to the chest.
       On May 12, 2011, back in Los Angeles, appellant was charged with one count of
murder. The People alleged appellant killed Silverio unlawfully and with malice
aforethought. Appellant moved to dismiss the case because, according to him, under
Penal Code former section 656, he could not be prosecuted for an act for which he
previously had been convicted in another country. In 1990, section 656 provided:
“Whenever on the trial of an accused person it appears that upon a criminal prosecution
under the laws of another state, government, or country, founded upon the act or
omission in respect to which he is on trial, he has been acquitted or convicted, it is a
sufficient defense.”1




1      Penal Code section 656 currently provides: “Whenever on the trial of an accused
person it appears that upon a criminal prosecution under the laws of the United States, or
of another state or territory of the United States based upon the act or omission in respect
to which he or she is on trial, he or she has been acquitted or convicted, it is a sufficient
defense.”

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       Our record demonstrates a penal action against appellant was started in Mexico
and transferred to a juvenile court there. An investigation was conducted into Silverio‟s
death and appellant was “presumed” responsible. The criminal complaint concerned
appellant‟s “probable responsibility in the commission of the crime of homicide.”
(Capitalization omitted.) Appellant served “a year of corrective treatment” in Mexico.
He “successfully completed the treatment imposed.”
       The court denied appellant‟s motion to dismiss. The People amended the
information to add a count of voluntary manslaughter. Appellant then pled no contest to
voluntary manslaughter. Appellant was sentenced to 11 years in state prison, and as
subsequently corrected was awarded 1,449 total credits, which included 1 year 3 months
appellant claimed to have served for murder or homicide in Mexico. The court issued a
certificate of probable cause for the instant appeal.
                                       DISCUSSION
       Appellant argues that under Penal Code former section 656, he cannot be punished
in California because he was “convicted of murder in a Mexican court” and served time
there for that crime. Section 656 provides “„greater double jeopardy protection than the
United States Supreme court has determined to be available under the Fifth Amendment
of the United States Constitution.‟ [Citation.]” (People v. Homick (2012) 55 Cal.4th
816, 838 (Homick).) The double jeopardy clause protects “against the imposition of
multiple criminal punishments for the same offense” in successive proceedings. (Hudson
v. United States (1997) 522 U.S. 93, 99.) The current version of section 656 does not
include a defense for convictions suffered in foreign countries, and appellant argues the
former version of that statute applies, which we assume to be true for purposes of this
appeal only.
       “[Penal Code] section 656 applies when the physical conduct required for the
California charges has previously been the subject of an acquittal or conviction in another
jurisdiction, regardless of whether the two charges have different requirements as to
intent or other nonact elements.” (Homick, supra, 55 Cal.4th at p. 840.) Section 656
does not apply if “„the offense committed is not the same act but involves [conduct] not
present in the prior prosecution.‟ [Citation.]” (Homick, at p. 843.) Applying these
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principles, our Supreme Court has concluded that the lying-in-wait special circumstance
requires proof of conduct additional to that required in a federal statute under which the
defendant was convicted of traveling between states to commit a murder for hire, which
resulted in death. (Id. at p. 844.) Our high court also held an acquittal for assault on a
federal officer barred state prosecution for assault but did not bar state prosecution for
robbery. (People v. Belcher (1974) 11 Cal.3d 91, 100 (Belcher).) In contrast to the
assault, the robbery prosecution required proof of an additional element.
       In Belcher, the defendant “presented to the court certified copies of the federal
indictment and of the judgment of acquittal.” (Belcher, supra, 11 Cal.3d at p. 94.) Based
on these certified documents and tracking the language of section 656, the court found
“no question that, . . . defendant „has been acquitted‟ or the acquittal came „upon a
criminal prosecution under the laws of another . . . government,‟ namely that of the
United States.” (Belcher, at p. 98.) Thus, in Belcher, the defendant satisfied his burden
of demonstrating that in federal court he had been acquitted of assaulting a federal
officer.
       In contrast, our record is insufficient to determine whether the same conduct
underlies appellant‟s California murder charge and the claimed conviction in Mexico.
There is no document identifying charges against appellant. There is no document
showing appellant was convicted of a crime or pled guilty to any crime. No official
document identifies the elements of the crime for which appellant was allegedly
convicted. There is no minute order or judgment. Although there is evidence appellant
may have been charged with homicide during a fight, no document shows he was
convicted of that offense. Because appellant presented no substantial evidence that he
suffered a foreign conviction “founded upon the act or omission” underlying his
California murder charge, appellant fails to carry his burden of demonstrating a foreign
conviction on the conduct underlying his California charge. Penal Code former
section 656, assuming it is applicable, provides appellant no defense.2


2     In his supplemental brief, appellant argues his trial counsel‟s representation that he
had been convicted of homicide during a fight is sufficient to demonstrate such Mexican
conviction. Appellant cites authority in which the court relied on representations based
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       Finally, the parties dispute whether appellant was entitled to custody credits for
the time he received “corrective treatment” in Mexico. (People v. Cartwright (1995) 39
Cal.App.4th 1123, 1140 [custody credits may be amended at any time].) Appellant
argues that he was entitled to such treatment because the double jeopardy clause requires
that “criminal punishment be authorized „only once “for the same offense”‟” and that
principle “applies equally to juveniles and adults.” Appellant‟s argument lacks merit
because he has not shown he served time “for the same offense.” As noted, appellant
failed to carry his burden of demonstrating he was convicted in Mexico of killing
Silverio. Therefore, the credits must be modified to reflect 522 days of custody credit,
plus 260 days of conduct credit.3 The corrected presentence credit is 782 days.
                                     DISPOSITION
       The judgment is modified to reflect 782 days of presentence credit and in all other
respects is affirmed.


                                                 FLIER, J.


We concur:


              BIGELOW, P. J.                     RUBIN, J.



on counsel‟s personal knowledge of what counsel saw on a juror‟s notebook and
counsel‟s assessment of a defendant‟s ability to represent himself. (See, e.g., People v.
Wolozon (1982) 138 Cal.App.3d 456, 460; see also People v. Clark (2011) 52 Cal.4th
856, 971.) We need not determine whether a declaration by one with personal knowledge
of appellant‟s alleged conviction would have been sufficient as no such declaration was
presented in this case.

3      Appellant was arrested on October 1, 2010. He was sentenced on March 5, 2012.
The restrictions in Penal Code section 2933.2 are inapplicable to this case. (People v.
Cooper (2002) 27 Cal.4th 38, 40, fn. 2.) The conduct credit was calculated “„“by
dividing the number of days spent in custody by four and rounding down to the nearest
whole number. This number is then multiplied by two and the total added to the original
numbers of days spent in custody. . . .”‟” (People v. Philpot (2004) 122 Cal.App.4th 893,
908, citations omitted.)
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People v. Cortes
B239895

RUBIN, J., Concurring


       I concur in the majority opinion, which I have signed, but write separately to
express concern that the state of the record may have forced us to avoid the one issue in
this case that was apparently tried in the trial court, an issue that involves significant
constitutional and statutory principles of double jeopardy and retroactivity: Does former
or present Penal Code section 656 apply to this case? The importance of this question is
apparent because under the current version of the statute – the one that the trial court
appears to have applied – the Mexican proceedings result only in additional credits for
the time served in Mexican custody. (See Pen. Code, § 656.5.) On the other hand, if the
former version of the statute is applicable, then the California conviction may be invalid.1
       We hold the record is unclear as to whether or not the actual charges arising out of
the California homicide were fully adjudicated in Mexico. Neither the trial court nor the
District Attorney seemed to question that there was a juvenile adjudication in Mexico and
that it was based on the California murder. The only question presented in the trial court
was which version of the statute applied. The District Attorney was successful in
persuading the trial court that the current statute governed and that the Mexico
adjudication had only limited effect under Penal Code section 656.5. Tellingly, the

1      Penal Code former section 656, in effect when the murder occurred, provided:
“FOREIGN CONVICTION OR ACQUITTAL. Whenever on the trial of an accused person it
appears that upon a criminal prosecution under the laws of another state, government, or
country, founded upon the act or omission in respect to which he is on trial, he has been
acquitted or convicted, it is a sufficient defense.”

       Current Penal Code section 656 deletes the reference to foreign country and
provides: “Whenever on the trial of an accused person it appears that upon a criminal
prosecution under the laws of the United States, or of another state or territory of the
United States based upon the act or omission in respect to which he or she is on trial, he
or she has been acquitted or convicted, it is a sufficient defense.”



                                               1
District Attorney affirmatively asserted in the trial court that defendant was entitled to
credit in the California case for the time served in Mexican custody. Such custody credits
were awarded by the trial court under section 656.5 which states:
       “Any person convicted of a crime based upon an act or omission for which he or
she has been acquitted or convicted in another country shall be entitled to credit for any
actual time served in custody in a penal institution in that country for the crime, and for
any additional time credits that would have actually been awarded had the person been
incarcerated in California.”
       By express words, Penal Code section 656.5 does not apply unless the California
crime and the foreign jurisdiction crime are the same.
       Nevertheless, I join in the majority because we are shackled in our analysis of the
record because it contains only a small portion of the Mexico proceedings translated in
English. I surmise that if the entire record of the Mexico proceedings had been
translated, there would be no doubt that the adjudication in Mexico qualified under one of
either Penal Code former section 656 or present section 656.5, depending on the
resolution of that issue. Certainly, everyone in the trial court assumed that one of the
two statutes governed. Instead, we conclude that neither section applies and reverse the
award of credits under section 656.5 because of a deficient record.
       But I reluctantly concede that my surmise is just that, surmise, and the record in its
current form does not allow us to go further. It may be that if the case returns to us in the
form of a habeas petition with a fully translated record of what took place in Mexico or
other admissible evidence, we will be able to address the more serious constitutional and
statutory issues that elude us today.


                                           RUBIN, J.




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