	

Filed 4/14/15 P. v. Romansky CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SEVEN

THE PEOPLE,                                                          B252424

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA090108)
         v.

JERRY LEE ROMANSKY,

         Defendant and Appellant.




                   APPEAL from judgment of the Superior Court of Los Angeles County.
Hayden Zackey, Judge. Affirmed.


                   Edward H. Schulman, under appointment by the Court of Appeal, for
Defendant and Appellant.


                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D.
Matthews and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.




	
	


                                                           INTRODUCTION
             Defendant and appellant Jerry Lee Romansky appeals from his second-degree
murder conviction (Pen. Code, § 187, subd. (a))1 after a jury found he fatally stabbed his
roommate at Pacifica Hospital of the Valley (Pacifica).2 Romansky contends the trial
court erred when it did not instruct the jury sua sponte on imperfect self-defense and
voluntary manslaughter. Specifically, he argues the trial court should have modified its
jury instruction on hallucinations (CALCRIM No. 627) to inform the jury that it could
consider the delusions he suffered at the time he killed his roommate to find that he acted
in imperfect self-defense; a finding that would have reduced the homicide from second-
degree murder to voluntary manslaughter. He urges us not to follow People v. Mejia-
Lenares (2006) 135 Cal.App.4th 1437 (Mejia-Lenares), in which the Fifth District held
that imperfect self-defense cannot be based on an insane delusion alone, where the
defendant’s unreasonable belief that he faces an imminent threat of death or bodily injury
finds no basis in the objective facts or circumstances surrounding the killing. (Id. at p.
1461.) While this appeal was pending, the California Supreme Court decided People v.
Elmore (2014) 59 Cal.4th 121 (Elmore), in which the court expressly agreed with the
Fifth District’s reasoning in Mejia-Lenares and held that a “defendant may not claim
unreasonable self-defense based on insane delusion.” (Id. at p. 129; see also id. at pp.
136-137.) Because Romansky’s motivating fear in killing his roommate was based on his
own insane delusion with no supporting objective factual basis, we affirm his second-
degree murder conviction.




																																																								
1
             All further statutory references are to the Penal Code unless otherwise specified.
2
       Following a bifurcated trial, during which the issue of guilt was tried before a jury
and the issue of insanity was tried before the court, Romansky was found legally insane
under section 1026 and ordered placed in a mental-health treatment facility for a period
not to exceed 31 years to life.

                                                                2
	


                                  FACTUAL BACKGROUND
       Romansky was admitted to Pacifica’s mental-health unit on June 20, 2011. His
parents brought him to Pacifica for evaluation and treatment after he had asked his father
to shoot him. After being evaluated by Pacifica’s staff psychiatrist, Romansky was
diagnosed with schizophrenia and determined to be exhibiting altered thought processes
that posed a danger to himself and others. According to the staff psychiatrist, Romansky
believed someone was trying to poison him, and he heard voices urging him to kill
himself and other people. According to his father, Romansky had previously been
diagnosed with schizophrenia and bipolar disorder, and he had been involuntarily
committed to a psychiatric hospital on approximately nine prior occasions.
       Upon his admission to Pacifica, Romansky was assigned to share a room with
Dean Camacho, another patient in the hospital’s mental-health unit. Although Camacho
was “out of control” and aggressive when he was first admitted to Pacifica in March
2011, he had developed into a “very respectful” patient prior to the events leading up to
his death. One of Pacifica’s nurses testified that she had seen Camacho flirt with other
patients and heard him say that he liked both men and women; however, she never saw
him try to touch any of the other patients. According to another nurse, Camacho had
expressed that he preferred men to women, but he was never sexually aggressive toward
other patients at the hospital.
       On the evening of June 26, 2011, a nurses’ assistant checked on Romansky and
Camacho in their room. When the nurses’ assistant entered the room, Romansky came
out of the restroom cloaked in a blanket. He was sweating and trembling, and he
repeatedly asked the assistant for help.
       When additional hospital staff members arrived, they found Camacho’s body
slouched face-down in the restroom stall, with his head and neck resting on the toilet’s
rim, his back facing away from the toilet, and his pants and underwear pulled down
below his buttocks. Camacho’s neck had been cut horizontally, and there were
approximately 40 to 50 other distinct stab wounds on his neck, one of which had severed



                                             3
	


his vertebral artery. The horizontal cut to Camacho’s neck had been inflicted
postmortem; Camacho had bled to death from the stab wounds to his neck.
             While the staff members were responding to Romansky and Camacho’s room,
Romansky lay down in a prone position on the hallway floor outside the room. He told
members of the staff that he had done something bad; that he “did it” because he needed
to protect himself and his family. Romansky then reached into his pocket and pulled out
a blood-stained metal bracket3 and several dollar bills.
             Romansky was restrained and later interviewed at the hospital by a detective from
the Los Angeles Police Department. Although many of his statements were incoherent
and non-responsive to the detective’s questions, Romansky repeatedly admitted that he
had stabbed and killed Camacho.
             Romansky provided the detective several different and seemingly unrelated
explanations for why he killed Camacho. For example, he said that he had the “green
light,” and that he had to kill Camacho to protect his mother from the “mafia.” He then
said that he had been “cornered and [he] couldn’t . . . take it no more.” However, he did
not say who had cornered him. He also said that he did not want to be “the girl”
anymore, that he wanted a girlfriend, and that he had been raped by men his whole life.
Romansky told the detective that Camacho had been naked in bed with him earlier;
however, he told the detective that Camacho did not become angry with him after he told
Camacho that he did not want to be the girl anymore. He then said that he had “lost his
mind” before he killed Camacho. Finally, he said that his friend, who was a “cholo,” told
him that if he wanted to be a “G,” he could not be lazy. In order to become a “G,”
Romansky believed he needed to kill Camacho.
             After his interview, Romansky was taken into police custody.



																																																								
3
      The blood covering the metal bracket was later determined to be Camacho’s. The
bracket had been removed from a box located above the toilet where Camacho’s body
was found.

                                                           4
	


                                                     PROCEDURAL BACKGROUND
             An information filed on October 14, 2011, charged Romansky with Camacho’s
murder (§ 187, subd. (a)). The information alleged that Romansky had personally used a
deadly weapon, namely an improvised stabbing tool, when he killed Camacho (§ 12022,
subd. (b)(1)). The information also alleged Romansky had previously suffered a serious
or violent felony conviction (prior-strike allegation) (§§ 667, subd. (b) & 1170.12, subd.
(a)). Romansky denied the personal-use and prior-strike allegations and pled not guilty
by reason of insanity. The parties stipulated to a bifurcated trial, with the guilt phase to
be tried before a jury and the insanity phase to be tried before the court.
             During the guilt phase, the trial court instructed the jury that it may consider
evidence of Romansky’s hallucinations around the time he killed Camacho to determine
whether he acted with premeditation and deliberation (CALCRIM No. 627).4 Romansky
did not request, and the trial court did not provide, a modified version of CALCRIM No.
627 informing the jury that it could consider evidence of his hallucinations in
determining whether he acted in imperfect self-defense when he killed Camacho.
             The jury convicted Romansky of second-degree murder and found true the
personal-use allegation. At the sanity phase, two medical experts testified about
Romansky’s mental-health history and the circumstances surrounding his killing of
Camacho. At the conclusion of the sanity phase, the trial court found Romansky legally
insane within the meaning of section 1026. The trial court then found true the prior-strike



																																																								
4
       CALCRIM No. 627 provides: “A hallucination is a perception not based on
objective reality. In other words, a person has a hallucination when that person believes
that he or she is seeing or hearing [or otherwise perceiving] something that is not actually
present or happening. [¶] You may consider evidence of hallucinations, if any, in
deciding whether the defendant acted with deliberation and premeditation. [¶] The
People have the burden of proving beyond a reasonable doubt that the defendant acted
with deliberation and premeditation. If the People have not met this burden, you must
find the defendant not guilty of first degree murder.”


                                                               5
	


allegation. The court ordered Romansky placed in a secure mental-health treatment
facility for a period not to exceed 31 years to life.5
             Romansky timely appealed his conviction.
                                                           DISCUSSION
I.           Imperfect Self-Defense and Voluntary Manslaughter
             Romansky contends the trial court erred when it did not instruct the jury that
“hallucinatory thinking” could support a voluntary manslaughter conviction premised on
a theory of imperfect self-defense.6 Specifically, he argues the jury should have been
instructed to consider the honest but irrational fear of great bodily injury he allegedly
experienced before he attacked Camacho, a fear that he initially asserted in his opening

																																																								
5
       The term of 31 years to life was calculated by doubling the 15-years-to-life term
required for a second-degree murder conviction (§ 190, subd. (a)) as a result of the trial
court’s prior strike finding (§ 667, subd. (e)(1)) and adding one year for the jury’s
personal use of a deadly weapon finding (§ 12022, subd. (b)(1)).
6
        Acknowledging he did not object to the trial court’s instructions below, Romansky
argues he did not forfeit a challenge to those instructions on appeal for a number of
reasons. For example, he contends his challenge is preserved under section 1259, which
permits an appellate court to review any claim of instructional error that affects a
defendant’s substantial rights regardless of whether the defendant objected to the alleged
error in the trial court. (§ 1259 [“The appellate court may . . . review any instruction
given, refused or modified, even though no objection was made thereto in the lower
court, if the substantial rights of the defendant were affected thereby.”]; People v.
Smithey (1999) 20 Cal.4th 936, 976, fn. 7.) He also contends his challenge is preserved
because his trial counsel was ineffective for failing to request instructions addressing
imperfect self-defense and voluntary manslaughter.

       The People do not contend Romansky’s claim is forfeited, but take specific issue
with Romansky’s arguments addressing section 1259 and whether his trial counsel was
ineffective. Because a determination of whether Romansky’s substantial rights were
affected by the court’s alleged error inherently requires an analysis of whether the court’s
instructions were flawed and, if so, whether that error prejudiced Romansky, we
necessarily must reach the merits of his claim here. Accordingly, we need not and do not
address Romansky’s arguments that he did not forfeit his claim of instructional error
based on other grounds set forth in his opening brief, including whether his trial counsel’s
alleged ineffective assistance preserved the claim for appeal. (See People v. Figueroa
(2008) 162 Cal.App.4th 95, 100, fn. 4.)

                                                               6
	


brief “could only be explained as the product of a chronically psychotic mind.”
Conceding that a fear of great bodily injury or death based solely on an insane delusion
cannot reduce murder to voluntary manslaughter under a theory of imperfect self-defense
(see Elmore, supra, 59 Cal.4th at pp. 136-137, 145-146; see also Mejia-Lenares, supra,
135 Cal.App.4th at p. 1461), Romansky argues in his reply brief that his irrational fear of
great bodily injury was in fact founded on the objective circumstances surrounding his
killing of Camacho. (See Elmore, supra, 135 Cal.App.4th at p. 146 [evidence of mental
disease, defect, or disorder may be used to support a claim of imperfect self-defense
where objective circumstances giving rise to the unreasonable belief exist but are
distorted by the disease, defect, or disorder].) We disagree.
       1.                                     Applicable Law and Standard of Review
       Under California law, criminal homicide is divided into two major classes: the
greater offense of murder and the lesser included offense of manslaughter. (People v.
Rios (2000) 23 Cal.4th 450, 460.) “Murder is the unlawful killing of a human being . . .
with malice aforethought.” (§ 187, subd. (a).) Malice may be express or implied.
(§ 188.)
       “‘A killing with express malice formed willfully, deliberately, and with
premeditation constitutes first degree murder.’ [Citation.] ‘Second degree murder is the
unlawful killing of a human being with malice aforethought but without the additional
elements, such as willfulness, premeditation, and deliberation, that would support a
conviction of first degree murder.’ [Citation.] Thus, the mens rea required for murder is
malice, express or implied.” (Elmore, supra, 59 Cal.4th at p. 133.)
       Manslaughter, by contrast to murder, is the “unlawful killing of a human being
without malice.” (§ 192.) Manslaughter is divided into three categories: voluntary,
involuntary, and vehicular. (Ibid.) A killing perpetrated in imperfect, or unreasonable,
self-defense lacks malice and gives rise to criminal liability for voluntary manslaughter.
(In re Christian S. (1994) 7 Cal.4th 768, 783.) “‘[O]ne who holds an honest but
unreasonable belief in the necessity to defend against imminent peril to life or great
bodily injury does not harbor malice and commits no greater offense than manslaughter.’


                                             7
	


[Citation.]” (Elmore, supra, 59 Cal.4th at p. 134.) Imperfect self-defense is “‘not a true
defense; rather, it is a shorthand description of one form of voluntary manslaughter.’
[Citation.]” (Ibid.)
       Imperfect self-defense “involves a misperception of objective circumstances, not a
reaction produced by mental disturbance alone.” (Elmore, supra, 59 Cal.4th at p. 134.)
Accordingly, imperfect self-defense supporting a voluntary manslaughter conviction
cannot be based on delusion alone. (Id. at p. 146; Mejia-Lenares, supra, 135 Cal.App.4th
at p. 1461.) Rather, a claim of imperfect self-defense where the defendant’s honest but
irrational perception of imminent harm or death is distorted by his mental illness must be
based on a misperception of objective circumstances that actually exist at the time of the
killing. (Elmore, supra, 59 Cal.4th at p. 146 [“[D]efendants who mistakenly believed
that actual circumstances required their defensive act may argue they are guilty only of
voluntary manslaughter, even if their reaction was distorted by mental illness.”].) A
defendant who claims he killed in self-defense because of a purely delusional belief that
he faced an imminent threat of death of great bodily harm must raise that claim at a sanity
trial. (Ibid.) “Unreasonable self-defense and legal insanity are distinct theories, and must
be adjudicated separately.” (Ibid.)
       Voluntary manslaughter arising out of a killing perpetrated in imperfect self-
defense is a lesser offense included in the crime of murder. (People v. Barton (1995) 12
Cal.4th 186, 201-202 (Barton).) A trial court must instruct on all lesser included offenses
supported by substantial evidence. (People v. Duff (2014) 58 Cal.4th 527, 561.)
“Whenever there is substantial evidence that the defendant killed in unreasonable self-
defense, the trial court must instruct on this theory of manslaughter.” (Elmore, supra, 59
Cal.4th at p. 134.) The trial court has no duty to instruct on imperfect self-defense when
the evidence suggesting the defendant killed in imperfect self-defense is “minimal or
insubstantial.” (Barton, supra, 12 Cal.4th at p. 201.) Substantial evidence is evidence
“sufficient to ‘deserve consideration by the jury,’ that is, evidence that a reasonable jury
could find persuasive.” (Id. at p. 201, fn. 8.)



                                              8
	


       We review de novo a claim that the trial court erred in failing to instruct on a
lesser included offense. (People v. Souza (2012) 54 Cal.4th 90, 113.)
       2.                                      Analysis
       Romansky contends the trial court had a sua sponte duty to instruct on imperfect
self-defense, either by modifying CALCRIM No. 627’s hallucination instruction or by
separately instructing on imperfect self-defense and voluntary manslaughter, because
there was evidence of “a lurking homosexual entanglement” preceding his killing of
Camacho. The People contend the trial court had no duty to instruct on imperfect self-
defense because Romansky’s fear that he needed to defend himself from Camacho was
wholly delusional.
       Here, the trial court had no duty to instruct the jury on imperfect self-defense.
Although Romansky asserts his motivating fear was based on evidence of a “homosexual
entanglement” preceding his attack on Camacho, he cites to no evidence, and we find
none in the record, that could provide an objective basis from which an unreasonable fear
of imminent death or great bodily injury could be drawn. (See Elmore, supra, 59 Cal.4th
at p. 134 [although imperfect self-defense involves an unreasonable belief in the need to
protect oneself, the belief still must be founded in objective facts or circumstances that
could give rise to an actual but unreasonable fear of imminent death or great bodily
injury].) In other words, there is no evidence that Romansky actually perceived an
immediate risk of death or great bodily injury when he stabbed and killed Camacho. (See
id. at p. 146 [“The jury must find there was an actual, unreasonable belief in the necessity
of self-defense based on the circumstances . . . .”].)
       Romansky asserts the evidence that Camacho had lain naked in bed with him and
his statements to the detective that he had become fed up with being the “girl”
demonstrate he felt an “imperative and compelling need to resist Camacho’s continual
and forceful advances for the last and final time,” which constitutes an objective basis
supporting his claim of imperfect self-defense. We disagree.
       There is no evidence in the record demonstrating that Camacho may have been
forceful with, or aggressive toward, Romansky. As members of the hospital staff


                                              9
	


testified, Camacho had not been aggressive toward any of Pacifica’s patients during the
time shortly before his death. The fact that Camacho had expressed to other patients and
staff that he was attracted to men in no way demonstrates, by itself, that he was likely to
have been sexually aggressive toward Romansky. In fact, as Romansky told the
detective, Camacho did not become angry when he (Romansky) told Camacho that he did
not want to be the girl anymore when they were lying in bed together.
       Indeed, during the sanity phase, Romansky argued that there was no evidence that
his attack on Camacho was sexually motivated. Counsel for Romansky contended that
“there’s no evidence that Mr. Romansky had homosexual feelings or thoughts or desires,”
and that even if he had, that theory supports “the idea that he was under a delusion at the
time [of the killing].” Romansky’s testifying psychiatrist, who interviewed Romansky
and reviewed the transcript of the police interrogation, confirmed the lack of evidence to
support a theory of imperfect self-defense. The psychiatrist testified: “There is no proof
that the guy was forcing [Romansky]. . . . There is no such information from the detective
interviews [that Camacho] was forcing him.”
       In addition, the physical evidence surrounding Camacho’s death does not suggest
that there was an objective basis for Romansky’s perceived threat of death or great bodily
harm. Romansky had no defensive wounds or marks on his body, suggesting that he did
not struggle with Camacho. Indeed, Camacho’s body was found slouched facedown over
the toilet, with forty to fifty distinct cuts to his neck, indicating that Romansky had
approached Camacho from behind and that there was no struggle between him and
Camacho immediately before Camacho’s death. This evidence, or lack thereof, when
viewed in conjunction with the statements Romansky provided to the detective,
demonstrate that any fear he may have experienced before he killed Camacho was
detached from reality and based entirely on his insane delusions.
       Romansky provided several different explanations for why he attacked Camacho,
but none of these explanations involved any circumstances that, if based on actual,
objective facts existing at the time he stabbed and killed Camacho, would support a claim
of imperfect self-defense. For example, Romansky told the officer that he believed he


                                             10
	


needed to kill Camacho to protect his mother from the mafia. However, there was no
evidence that Camacho, or any other person close to Romansky at the time of Camacho’s
death, was involved in the mafia or had threatened Romansky or his mother.7 Romansky
also told the officer that he had been instructed by a friend to kill Camacho to prove that
he was a “G.” Even if this explanation was founded in objectivity, it would not support a
claim for imperfect self-defense because it could not give rise to an unreasonable belief
that Romansky faced a threat of imminent death or harm at the time he killed Camacho.
Finally, although Romansky also told the detective that he killed Camacho because he
felt “cornered,” he did not state that he felt cornered by Camacho immediately before the
attack. (See Elmore, supra, 59 Cal.4th at p. 146 [actual but unreasonable fear of
imminent threat must be based on the objective circumstances existing at the time of the
killing].) As Romansky’s opening brief acknowledges, at the time he killed Camacho,
Romansky was “suffering from hallucinatory and delusional thinking,” and his beliefs,
even if honest, were “all irrational.”
             In light of the foregoing, we reject Romansky’s claim that he killed Camacho in
imperfect self-defense because any threat he may have perceived was entirely delusional.
(Elmore, supra, 59 Cal.4th at p. 134.) The trial court therefore had no duty to instruct on
imperfect self-defense and voluntary manslaughter. (See ibid; see also Barton, supra, 12
Cal.4th at p. 201.)
II.          The Trial Court’s Prior-Strike Finding Is Supported by Substantial Evidence
             Romansky next contends the trial court’s prior-strike finding is not supported by
substantial evidence, and the People agree. Both parties are incorrect.
             Section 1192.7 defines what crimes constitute serious felonies, or strikes, for
purposes of imposing sentencing enhancements for prior-strike convictions. (See § 667,
subd. (a)(4).) In 2000, California voters passed Proposition 21, which added as a
																																																								
7
        Romansky’s father testified that Romansky was never involved with gangs or
other forms of organized crime, and that he merely had an interest in learning about the
mafia and gangs and would often watch television shows and movies involving such
topics.

                                                           11
	


separately cognizable serious felony: “assault with a deadly weapon, firearm,
machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or
firefighter, in violation of Section 245.” (§ 1192.7, subd. (c)(31); see also Ballot Pamp.,
Primary Elec. (Mar 7, 2000) text of Prop. 21, § 17, pp. 124-125.) Following section
1192.7’s amendment by Proposition 21, “[a] conviction for assault with a deadly weapon
under section 245, subdivision (a)(1) now qualifies as a serious felony whether or not the
defendant was convicted as a direct perpetrator or as an aider and abettor.” (People v.
Banuelos (2005) 130 Cal.App.4th 601, 605 (Banuelos), italics original.)
       To prove a prior conviction, the prosecutor may introduce official court records
from the prior conviction’s proceedings, including, among other things, the criminal
complaint, certified copies of the court’s minute orders, and certified copies of the
abstract of judgment. (People v. Delgado (2008) 43 Cal.4th 1059, 1066 (Delgado);
People v. Henley (1999) 72 Cal.App.4th 555, 559-560.) “‘[The] trier of fact is entitled to
draw reasonable inferences from certified records offered to prove a defendant suffered a
prior conviction. . . .’ [Citation.] ‘[O]fficial government records clearly describing a prior
conviction presumptively establish that the conviction in fact occurred, assuming those
records meet the threshold standards of admissibility. [Citation.] Some evidence must
rebut this presumption before the authenticity, accuracy, or sufficiency of the prior
conviction records can be called into question.’ [Citation.]” (Delgado, supra, 43 Cal.4th
at p. 1066.)
       The trial court found Romansky previously suffered a prior-strike conviction in
2009, after he pled no contest to a charge of assault with a deadly weapon, namely a knife
(former § 245, subd. (a)(1) [amended by Stats. 2011, c. 183 (A.B.1026), § 1). The court
based its finding on the court’s file from Romansky’s prior assault conviction, a certified
minute order from the hearing at which Romansky entered his no contest plea to the
assault charge, and Romansky’s booking photograph from his arrest on the assault
charge. In reaching its finding, the court stated the following: “The court has reviewed
the certified minute order . . . . The court has also reviewed . . . a booking photograph of
Mr. Romansky . . . . I am also looking at the court file. The minute order does reflect


                                             12
	


that Mr. Romansky was convicted of Count 1, a violation of [section 245, subdivision
(a)(1)]. And looking at the complaint and the court file that the court has, the court notes
that Count 1 is a . . . serious felony and, thus, is a strike. The court, therefore, will find
the prior strike [allegation] to be true within the meaning of [section] 1170.12,
[subdivisions] (a) through (d), and [section] 667, [subdivisions] (b) through (i).”
       Romansky and the People assert that insufficient evidence supports the trial
court’s prior-strike finding because the record of Romansky’s prior conviction does not
disclose that Romansky directly perpetrated, as opposed to aided and abetted, the assault.
Both parties erroneously rely on the law interpreting prior-strike findings based on
convictions for assault under former section 245, subdivision (a)(1) that predates
Proposition 21’s amendment of section 1192.7. Prior to that statute’s amendment, a
violation of section 245, subdivision (a)(1) did not qualify as a serious felony under
section 1192.7 unless the defendant personally used a deadly weapon or personally
inflicted great bodily harm. (See People v. Rodriguez (1998) 17 Cal.4th 253, 261
(Rodriguez) [evidence of a conviction under section 245, subdivision (a)(1), standing
alone, is insufficient to prove the defendant was convicted of a “serious” felony].)
However, as noted, following Proposition 21’s amendment of section 1192.7, assault
with a deadly weapon under section 245, subdivision (a)(1) constitutes a serious felony
and, consequently, a strike offense, regardless of whether the defendant aided and abetted
the assault or personally used the deadly weapon in committing the assault. (Delgado,
supra, 43 Cal.4th at p. 1065 [“‘[A]ssault with a deadly weapon’ is a serious felony.”]; see
also Banuelos, supra, 130 Cal.App.4th at p. 605.)
       Here, sufficient evidence supports the trial court’s prior-strike finding. The
criminal complaint filed in Romansky’s prior assault case states that Romansky was
charged under former section 245, subdivision (a)(1) with assault with a deadly weapon,
namely a knife. A minute order from one of the trial court’s hearings held several weeks
after the complaint was filed states that Romansky was charged with “ASSAULT W
DEADLY WEAPON/INSTR.” In addition, at the hearing at which Romansky pled no



                                               13
	


contest to the assault charge, the following exchange occurred between the court,
Romansky, and his counsel:


       The Court:     With all that [in] mind, how do you plead in count 1 to a
                      violation of Penal Code section 245(a)(1), assault with a
                      deadly weapon, a knife, on July 3rd, 2008? Guilty, not guilty
                      or no contest?
       [Romansky]: No contest.
                                              ***
       The Court:     [D]o you understand this is a strike offense[?] If you pick up
                      another felony in the future, this offense could be used to
                      double your sentence in the next case. Do you understand
                      that?
       [Romansky]: Yes.
       The Court:     All right. Counsel join in the plea and waivers, stipulate to a
                      factual basis based on the probation report?
       [Romansky’s Counsel]: Join and stipulate.


       At the sentencing hearing in this case, Romansky presented no evidence to rebut
the presumption that the records contained in his prior-conviction case file established
that his prior conviction for assault was a serious felony that qualified as a strike. (See
Delgado, supra, 43 Cal.4th at p. 1066 [“[I]f the prosecution presents, by [certified record
from the trial court], prima facie evidence of a prior conviction that satisfies the recidivist
enhancement at issue, and if there is no contrary evidence, the fact finder, utilizing the
official duty presumption, may determine that a qualifying conviction occurred.”].)
Because those records constitute prima facie evidence of a prior conviction for a serious
felony (i.e., assault with a deadly weapon in violation of former section 245, subdivision
(a)(1)), the trial court did not err in finding that the conviction qualified as a serious
felony for sentencing purposes.


                                               14
	


                                                           DISPOSITION



             The judgment is affirmed.




                                                                         IWASAKI, J.*


We concur:




                           PERLUSS, P. J.                                ZELON, J.




																																																								
*
 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


                                                               15
