Filed 1/23/14 P. v. Caldwell CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN


THE PEOPLE,                                                          B241106

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. YA079862)
         v.

RICARDO TRACY CALDWELL,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Steven R. Van Sicklen, Judge. Affirmed.
         Jeffrey J. Douglas, 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, James William Bilderback II, and
Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
                                                 _______________
       A jury convicted Ricardo Tracy Caldwell of two counts of robbery and found true
special allegations he had suffered two prior serious felony convictions within the
meaning of the three strikes law and Penal Code section 667, subdivision (a)(1). The trial
court dismissed one prior strike conviction in furtherance of justice and sentenced
Caldwell to an aggregate state prison term of 18 years. Caldwell challenges his sentence,
contending there is insufficient evidence his prior robbery convictions in Maryland
qualified as serious felonies in California. We affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
       Caldwell was charged in an amended information with three counts of robbery
(Pen. Code, § 211.)1 It was specially alleged Caldwell had suffered two prior convictions
in Maryland for serious or violent felonies (robbery with a deadly weapon) within the
meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). One of
the prior convictions was alleged to be a serious felony within the meaning of section
667, subdivision (a)(1). Caldwell pleaded not guilty and denied the special allegations.
       At trial the People presented evidence that on November 14, 2010 Caldwell
reached across a cashier’s counter at a retail store and stole $260 to $300 from the cash
register, overpowering the store employee who had grabbed Caldwell’s wrist in an
unsuccessful effort to prevent him from taking the money (count 1). On December 20,
2010 Caldwell returned to the same store and reached over a different cashier’s desk to
grab money from the register, once again physically overcoming the store employee’s
efforts to stop him (count 3). Both store employees testified they were afraid of Caldwell
at the time of the offenses.
       In the same proceeding the People submitted certified documents from the
Maryland trial court showing (1) Caldwell had pleaded guilty to robbery with a deadly
weapon in Maryland on November 9, 1977 and was sentenced to an aggregate state
prison term of four years six months; and (2) Caldwell had pleaded guilty to robbery with

1
       Statutory references are to the Penal Code unless otherwise indicated.

                                             2
a dangerous weapon on January 26, 1981 and was sentenced to an aggregate state prison
term of 10 years for that offense.
       The jury convicted Caldwell on counts 1 and 32 and found true he had suffered the
two alleged prior convictions in Maryland. The court struck one prior conviction in
furtherance of justice (§ 1385, subd. (a)) and sentenced Caldwell to an aggregate state
prison term of 18 years.3
                                       DISCUSSION
       1. Governing Law
       A defendant who has suffered a prior conviction for a serious or violent felony is
subject to sentencing under the three strikes law. (§§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d).) Similarly, a defendant who has been convicted of a serious felony and
has suffered a prior conviction for a serious felony is subject to a mandatory five-year
sentence enhancement for each prior serious felony conviction that was brought and tried
separately. (§ 667, subd. (a)(1).) Prior convictions from other jurisdictions may qualify
for similar treatment provided certain requirements are met: Specifically, a prior out-of-
state felony conviction may qualify as a strike if the foreign offense includes “all of the
elements” of the particular felony in California and that felony is identified under
California as a serious felony (§ 1192.7, subd. (c)) or a violent felony (§ 667.5, subd. (c)).
(See §§ 667, subd. (d)(2); 1170.12, subd. (b)(2); People v. Warner (2006) 39 Cal.4th 548,

2
       The amended information also charged Caldwell with a robbery on December 4,
2010. The jury acquitted Caldwell of that offense, as well as the lesser-included larceny
offense.
3
       Caldwell’s sentence consisted of the middle term of three years on count 1,
doubled under the three strikes law, plus one year (one-third the middle term) on count 2,
doubled under the strikes law, plus two five-year enhancements for each prior serious
felony conviction found by the jury to be true. (§§ 667, subd. (a)(1), 1385, subd. (b)
[court may not strike a prior serious felony conviction for purposes of § 667
enhancement]). Caldwell did not object in the trial court and does not argue on appeal it
was improper to apply two section 667, subdivision (a), five-year enhancements when
only one prior serious felony conviction was specifically alleged under that code section.
(Both prior Maryland convictions were alleged in the information to constitute serious
felonies under the three strikes law.)

                                              3
552-553.) Similarly, a prior felony conviction from another jurisdiction may be used to
support a sentence enhancement under section 667, subdivision (a)(1), if the out-of-state
offense “includes all of the elements” of a serious felony as defined in California. (§ 667,
subd. (a)(1); Warner, at p. 553.)
       It is the conduct that comprises the out-of-state offense that matters, not the label
the foreign jurisdiction gives the offense. (See People v. McGee (2006) 38 Cal.4th 682,
691 [“a conviction from another jurisdiction must involve conduct that would qualify as a
serious” or in the case of the three strikes law, violent, felony in California]; People v.
Avery (2002) 27 Cal.4th 49, 52 [same].) In determining whether a prior out-of-state
felony conviction qualifies as a serious or violent felony in California, the trier of fact
may look to the entire record of conviction, but no further. When the record does not
disclose the facts of the offense actually committed, the court must presume the prior
conviction was for the least offense punishable under the foreign law. (People v.
Guerrero (1988) 44 Cal.3d 343, 352; People v. Roberts (2011) 195 Cal.App.4th 1106,
1116-1117.)
       2. The Court Did Not Err in Concluding Caldwell’s Prior Maryland Convictions
          Qualified as Serious Felonies
       Robbery is classified as both a serious and a violent felony in California. (See
§§ 1192.7, subd. (c)(19) [serious felony]; 667.5, subd. (c)(9) [violent felony].) In
asserting his prior Maryland convictions for robbery with a dangerous weapon do not
qualify as serious or violent felonies for purposes of the three strikes law or as serious
felonies for purposes of section 667, subdivision (a)(1), Caldwell asserts the elements of
robbery under Maryland law are more expansive than in California: In California
robbery is limited to the “‘felonious taking of personal property in the possession of
another, from his person or immediate presence, and against his will, accomplished by
means of force or fear’” (People v. Williams (2013) 57 Cal.4th 776, 786-787; § 211),
while in Maryland robbery may include not only theft of property by force or fear, but
also theft of services by force or fear (Md. Code, Crim. Law, § 3-401, subd. (e)). Since no
facts concerning the conduct constituting the underlying convictions were introduced into


                                               4
evidence for the jury to consider, Caldwell argues we must find he was convicted for the
least offense possible, theft of services by force or fear, which would not constitute a
robbery under California law.
              a. The finding that Caldwell’s prior convictions were serious felonies
                 under California law was made by the court, not the jury
       At the threshold, both Caldwell and the People erroneously presume we review the
jury’s finding the Maryland robberies qualified as strikes or sentencing enhancements.
The jury found Caldwell had twice been convicted in Maryland of robbery with a deadly
weapon, once in 1977 and again for a separate offense in 1981. It did not find, and was
not asked to consider, whether the Maryland offense included all the elements and
conduct of robbery as defined by California law.4 That determination, requiring a
comparative analysis of the elements of the offense in California and in the foreign
jurisdiction, is a legal question for the trial court. (See People v. McGee, supra,
38 Cal.4th at pp. 703, 706 [when elements of offense differed in California and in Nevada
where defendant was convicted, question whether prior out-of-state conviction qualified
as serious felony is “a legal determination of the nature of defendant’s prior convictions
as established by the record of the prior criminal proceedings”; “[t]his is an inquiry that is
quite different from the resolution of the issues submitted to a jury, and is one more
typically and appropriately undertaken by a court”].)

4
       The jury was instructed, “If you find the defendant guilty of a crime, you must
also decide whether the People have proved the additional allegation that the defendant
was previously convicted of other crimes. It has already been determined that the
defendant is the person named in the exhibits and testimony relating to the events which
occurred in the State of Maryland. [¶] The People allege that the defendant has been
convicted of: [¶] 1. A violation of Criminal Code section 3-401, Robbery with a Deadly
Weapon, on 11/9/77, in the State of Maryland, in Case Number 17709128. [¶] And [¶]
2. A violation of Criminal Code section 3-401, Robbery with a Deadly Weapon, on
1/26/81, in the State of Maryland, in Case Number 28100215. [¶] Consider the evidence
presented on this allegation only when deciding whether the defendant was previously
convicted of the crimes alleged. Do not consider this evidence as proof that the
defendant committed any of the crimes with which he is currently charged or for any
other purpose. [¶] You must consider each alleged conviction separately. The People
have the burden of proving each alleged conviction beyond a reasonable doubt. . . .”

                                              5
       Here, prior to submitting evidence of Caldwell’s prior convictions to the jury, the
court found the offenses, if they had been committed, qualified as violent and or serious
felonies under California law. We review that legal determination de novo. (People v.
McGee, supra, 38 Cal.4th at p. 706.)
              b. The elements of robbery under the relevant Maryland law and
                 California law are identical
       Caldwell’s contention Maryland’s definition of robbery is more expansive than
California’s is legally flawed. At the time Caldwell suffered his convictions in Maryland
in 1977 and 1981, robbery in that jurisdiction was defined by common law as “‘the
felonious taking and carrying away of the personal property of another, from his person
or in his presence, by violence, or by putting him in fear.’” (Darby v. State
(Md. App. 1968) 239 A.2d 584, 588; see Coles v. State (Md. 2003) 821 A.2d 389, 394
[prior to passage of legislation in October 2000, robbery in Maryland defined by common
law].) Those elements identified in the Maryland common law are identical to each of
the elements comprising a robbery offense in California. (People v. Williams, supra, 57
Cal.4th at pp. 786-787.) The language Caldwell cites—“obtaining the service of another
by force or threat of force”—was not part of Maryland law until October 2000 when the
Maryland legislature revised section 486 of its criminal code to codify and augment the
common law definition of robbery. (Coles, at p. 394 [“[t]he revised section 486 retains
robbery’s judicially determined meaning, and adds, ‘obtaining the service of another by
force or threat of force’”]; Md. Ann. Code, Art. 27, § 486 (1957, 1996 Repl. Vol., 2000
Supp].)5
       Any notion that obtaining services by force or fear was encompassed by the
common law definition of robbery, applicable at the time of Caldwell’s convictions, is
also dispelled by the language of Maryland’s robbery statute codifying and augmenting

5
       Prior to 2000, former section 486 of Article 27 of the Maryland Code stated the
penalty for robbery without defining or identifying the elements of that offense. It was
substantially amended in 2000 to include the current elements of a robbery offense and
then repealed and recodified in 2002 without substantive change as section 3-401 of the
Maryland Code, Criminal Law. (Md. Acts 2002, ch. 26, § 1.)

                                             6
that common law definition: “‘Robbery’ retains its judicially determined meaning except
that: (1) robbery includes obtaining the service of another by force or threat of
force . . . .” (Md. Code, Crim. Law, § 3-401, ital. added; Coles v. State, supra, 821 A.2d
at p. 394.) Had the common law definition of robbery already included the element of
obtaining services of another, the word “except” would be nonsensical. (See People v.
Loeun (1997) 17 Cal.4th 1, 9 [in interpreting statute, “‘we follow the Legislature’s intent,
as exhibited by the plain meaning of the actual words of the law’”]; Reno v. Baird (1998)
18 Cal.4th 640, 658.)
       Caldwell’s argument rests on the observation that at least one Maryland court
during the relevant period succinctly defined robbery as “larceny from the person,
accompanied by violence or putting in fear.” (Tyler v. State (Md. App. 1968) 245 A.2d
592, 595.) Because Maryland statutes at the time defined larceny to include theft of
services, Caldwell asserts the common law definition of robbery necessarily included
theft of services by force or fear. Even assuming the truth of the premise—that robbery
in Maryland was defined as larceny accomplished by force or fear—Caldwell’s
interpretation is not only belied by Maryland’s Supreme Court’s pronouncements in
Coles v. State, supra, 821 A.2d at page 394 and the language of Maryland’s current
robbery statute, as we have explained, but also by the history and language of Maryland’s
larceny laws. Under both Maryland common law and Maryland statute, theft of services
is a separate offense not encompassed by the crime of larceny.
       Prior to the adoption in Maryland of a general theft statute in 1978 (effective
July 1, 1979), larceny, like robbery, was defined in Maryland by the common law. The
Maryland Supreme Court identified the elements of larceny as “the fraudulent taking and
carrying away of a thing without claim of right with the intention of converting it to a use
other than that of the owner without his consent.” (State v. Gover (Md. 1973) 298 A.2d
378, 381; accord, Brown v. State (Md. 1964) 204 A.2d 532, 536.) Thus, contrary to
Caldwell’s contention, at the time Caldwell was convicted in 1977 larceny was limited to
the theft of a tangible item and did not include theft of services in its definition.



                                               7
       Effective July 1, 1979, Maryland combined and codified the crime of larceny with
other theft offenses accomplished without force or threat of force in a single statute
prohibiting several enumerated theft crimes. (See former Md. Code, Art. 27, § 342;
Jones v. State (Md. 1985) 493 A.2d 1062, 1063-1064.)6 The inclusion of larceny among
other theft crimes did not redefine larceny to broadly encompass theft of services; the
statute merely combined larceny and other offenses, such as “obtaining services by
deception” to a list of general theft offenses. (See Jones, at pp. 1063-1064 [“The General
Assembly of Maryland, effective July 1, 1979, consolidated a number of theft-related
offenses (not involving force or coercion) into a single newly created statutory offense
known as theft” which includes “obtaining services by deception”].) Thus, even under
the general definition of robbery posited by Caldwell—larceny accompanied by force or
fear—Caldwell’s prior Maryland convictions constituted serious felonies under
California law.
       c. The trial court’s consideration of Caldwell’s statements concerning his prior
          convictions, although error, was harmless
       Improperly focused on Maryland’s current robbery statute rather than the common
law definition of robbery at the time Caldwell was convicted of the Maryland offenses,
the trial court agreed with Caldwell that Maryland’s definition of robbery was more
expansive than California’s but nonetheless found both prior offenses qualified as serious
felonies. In reaching this conclusion, the court relied on statements Caldwell had made to
an investigator in the instant matter in which he revealed both prior Maryland offenses
involved the unlawful taking of property, not services. Caldwell contends the court erred
in considering this evidence because it was not part of his record of conviction in either
offense. (See People v. Trujillo (2006) 40 Cal.4th 165, 178 [defendant’s post-plea
statements to probation officer concerning prior offense are not part of record of
conviction in prior case and could not be used to determine whether prior felony was


6
       Former Article 27, section 342 of the Maryland Code was repealed in 2002 and
recodified as Maryland Code, Criminal Law, section 7-104 (general theft offenses). (See
Md. Acts 2002, ch. 26, § 2.)

                                             8
serious or violent]; People v. Thoma (2007) 150 Cal.App.4th 1096, 1098 [same].) In
light of our holding the elements of robbery under the relevant Maryland law did not
include theft of services by force or fear and thus did not differ from applicable
California law, the court’s consideration of Caldwell’s post-conviction statements, while
error, was plainly harmless. (People v. Watson (1956) 46 Cal.2d 818, 836 [improper
consideration of evidence harmless when not reasonably probable defendant would have
obtained a more favorable result absent the error].)
       In sum, Caldwell’s prior convictions in Maryland qualify as serious felonies
within both the meaning of the three strikes law and section 667, subdivision (a)(1). The
trial court did not err in sentencing Caldwell under both statutory schemes.

                                      DISPOSITION

       The judgment is affirmed.



                                                  PERLUSS, P. J.


       We concur:


              WOODS, J.


              ZELON, J.




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