Filed 1/6/14
                           CERTIFIED FOR PUBLICATION



               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                      DIVISION SIX


THE PEOPLE,                                                 2d Crim. No. B247709
                                                          (Super. Ct. No. F458833)
     Plaintiff and Respondent,                            (San Luis Obispo County)

v.

TOMMY SHERRELL LEADBETTER,

     Defendant and Appellant.


         Tommy Sherrell Ledbetter appeals from the judgment entered after his no
contest plea to assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).)1
Appellant admitted that he had personally inflicted great bodily injury upon the victim.
(§ 12022.7, subd. (a).) The trial court found true allegations of three prior serious or
violent felony convictions within the meaning of California's "Three Strikes" law. (§§
667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The "strikes" are 1989 Tennessee
convictions for robbery and aggravated assault and a 2001 Oklahoma conviction for
assault and battery with a dangerous weapon. The court also found true allegations of
three prior serious felony convictions (§ 667, subd. (a)) and two prior prison terms.
(§ 667.5, subd. (b).) Appellant was sentenced to prison for 39 years to life: 25 years to
life for assault with a deadly weapon and the three prior strikes, plus 3 years for the

1
    All statutory references are to the Penal Code unless otherwise stated.
great bodily injury enhancement, plus 10 years for two prior serious felony convictions
(the Tennessee robbery conviction and the Oklahoma conviction), plus one year for
one prior prison term. The court stayed sentence on the remaining prior conviction
enhancements.
       Appellant contends that the evidence is insufficient to prove that the two prior
Tennessee convictions are serious or violent felony convictions within the meaning of
the Three Strikes law and section 667, subdivision (a). We conclude that the evidence
is sufficient as to the Tennessee robbery conviction, but insufficient as to the
Tennessee aggravated assault conviction. We remand for resentencing or, at the
prosecutor's election, retrial of the strike and section 667, subdivision (a) allegations as
to the Tennessee aggravated assault conviction.
                Determination of Truth of Prior Conviction Allegations:
                        Legal Principles and Standard of Review
       "The People must prove all elements of an alleged sentence enhancement
beyond a reasonable doubt. [Citation.] Where . . . the mere fact of conviction under a
particular statute does not prove the offense was a serious felony, otherwise admissible
evidence from the entire record of the conviction may be examined to resolve the
issue. [Citations.] This rule applies equally to California convictions and to those
from foreign jurisdictions. [Citations.]" (People v. Miles (2008) 43 Cal.4th 1074,
1082.) "The normal rules of hearsay generally apply to evidence admitted as part of
the record of conviction to show the conduct underlying the conviction. [Citation.]"
(People v. Woodell (1998) 17 Cal.4th 448, 458.) "Thus, a statement in the record of
conviction that is offered to prove the truth of the matter stated must fall within an
exception to the hearsay rule. [Citation.]" (People v. Thoma (2007) 150 Cal.App.4th
1096, 1101.) "On review, we examine the record in the light most favorable to the
judgment to ascertain whether it is supported by substantial evidence. In other words,
we determine whether a rational trier of fact could have found that the prosecution



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sustained its burden of proving the elements of the sentence enhancement beyond a
reasonable doubt. [Citations.]" (People v. Miles, supra, 43 Cal.4th at p. 1083.)
           Prior Tennessee Robbery Conviction: Sufficiency of the Evidence
       For the prior 1989 Tennessee robbery conviction, the record of conviction
includes an indictment, a document signed by appellant and entitled "Petition to Enter
Plea of Guilty," and a judgment. The indictment consists of two counts: the first count
alleges robbery and the second count alleges aggravated assault. The robbery count
states that appellant and a codefendant assaulted Steven Joiner, put him "in fear and
danger of his life, . . . and violently did steal, take and carry away from [his] person
and against [his] will" two pizzas of the "value of approximately $20.00." The
judgment states that appellant pleaded guilty to "the offense of simple robbery."
       Appellant argues that, because the judgment does not state that he pleaded
guilty to the offense of robbery as charged in the indictment, the allegations in the
indictment are inadmissible hearsay. Appellant waived this issue because he failed to
raise it in the trial court. (Evid. Code, § 353, subd. (a).) Assuming, for purposes of
discussion, that there was no waiver, appellant is wrong on the merits. "[T]he trier of
fact may draw reasonable inferences from the record presented." (People v. Miles,
supra, 43 Cal.4th at p. 1083.) Based on appellant's "Petition to Enter Plea of Guilty,"
the trial court could reasonably infer that he had admitted the allegations of the
indictment. In the petition appellant stated: "I received a copy of the indictment or
information, which states the charge(s) against me, before I was required to plead to
the charge(s). I have read and discussed the indictment or information with my
attorney." (Italics added.) "My attorney has explained that the Court will consider
each count of each indictment or information to which I plead 'GUILTY' as a separate
offense . . . ." (Italics added.) Thus, appellant impliedly pleaded guilty to robbery as
charged in the indictment. The indictment, therefore, is admissible under the
admission exception to the hearsay rule. (Evid. Code, § 1220.)



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       In any event, the Tennessee judgment alone is sufficient to show that appellant
was convicted of a serious or violent felony. The judgment shows that in 1989 he
pleaded guilty to robbery. At that time in Tennessee, robbery was defined as "the
felonious and forcible taking from the person of another, goods or money of any value,
by violence or putting the person in fear." (Tenn. Code § 39-2-501, subd. (a).) In
California robbery is defined as "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." (§ 211.) These two statutory definitions are
essentially identical, except that the Tennessee definition is more restrictive because it
requires a "taking from the person of another," while the California definition requires
a taking "from his person or immediate presence." Thus, the mere fact of the 1989
Tennessee robbery conviction proves both the strike and prior serious felony
allegations. Robbery is both a violent and serious felony for purposes of the Three
Strikes Law and section 667, subdivision (a). (§§ 667, subd. (d)(1), 1170.12, subd.
(b)(1), 667.5, subd. (c)(9)), 1192.7, subd. (c)(19).)
       Appellant maintains that the Tennessee robbery conviction does not qualify as a
strike because, at the time of his conviction in 1989, California recognized a claim-of-
right defense to robbery but Tennessee did not. The California ”Legislature over 100
years ago codified in the current robbery statute the common law recognition that a
claim-of-right defense can negate the animus furandi element of robbery where the
defendant is seeking to regain specific property in which he in good faith believes he
has a bona fide claim of ownership or title." (People v. Tufunga (1999) 21 Cal.4th
935, 950.) The People concede that Tennessee did not recognize a claim-of-right
defense. (See Elliott v. State (1970) 2 Tenn.Crim.App. 418, 454 S.W.2d 187,
188 ["even if the property the defendant alleged was stolen from him had been the
very watch and ring later taken [by the defendant] from the person of the victim, the
jury would still have been justified in finding the crime of robbery was perpetrated"].)



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       Appellant contends that, based on the record of conviction, it cannot be
determined whether he took the victim's two pizzas under a claim of right and,
therefore, whether he would have been guilty of robbery pursuant to California law.
The contention lacks merit. The indictment alleges that appellant "violently did steal"
the two pizzas. Appellant impliedly admitted this allegation when he pleaded guilty.
Appellant could not have stolen the two pizzas if he had believed in good faith that the
pizzas were his personal property. "[T]o steal means 'to be a thief; practice theft.'
[Citations.]" (People v. Parson (2008) 44 Cal.4th 332, 352.) "The intent to steal . . . is
the intent, without a good faith claim of right, to permanently deprive the owner of
possession. [Citation.]" (People v. Davis (1998) 19 Cal.4th 301, 305, italics added.)
"[O]ne cannot feloniously intend to steal one's own property." (People v. Tufunga,
supra, 21 Cal.4th at p. 953, fn. 5.)
       Appellant would not prevail even if the indictment had not alleged that he had
stolen the pizzas. A prior conviction from another jurisdiction qualifies as a serious or
violent felony if the prior conviction "is for an offense that includes all of the elements
of a particular violent felony as defined in subdivision (c) of Section 667.5 or serious
felony as defined in subdivision (c) of Section 1192.7." (§§ 667, subd. (d)(2),
1170.12, subd. (b)(2).) In California the absence of a claim of right defense is not an
element of robbery. (People v. Kelley (1990) 220 Cal.App.3d 1358, 1366 ["The
elements of robbery are (1) a taking of personal property, (2) from the person or
immediate presence of another, (3) through the use of force or fear, (4) with an intent
to permanently deprive the owner of his property"].) Since the 1989 Tennessee
robbery conviction includes all of the elements of robbery under California law, it
qualifies as a conviction for a serious or violent felony.




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                   Prior Tennessee Aggravated Assault Conviction:
                               Sufficiency of the Evidence
       For the prior Tennessee aggravated assault conviction, the record of conviction
includes the indictment (the robbery is count 1 and the aggravated assault is count 2),
appellant's signed petition to enter a guilty plea, and the judgment, which states that he
pleaded guilty to aggravated assault. The People concede that the evidence is
insufficient because the record of conviction does not show that appellant personally
inflicted great bodily injury upon the victim.
       We accept the concession. The aggravated assault charge alleges that appellant
and the same codefendant named in the robbery charge "did cause serious bodily
injury to Steven Joiner willfully, knowingly or recklessly under circumstances
manifesting extreme indifference to the value of human life." In California aggravated
assault (§ 245, subd. (a)) qualifies as a serious felony only if the defendant personally
inflicted great bodily injury or personally used a firearm or a dangerous or deadly
weapon. (§ 1192.7, subd. (c)(8), (23); People v. Delgado (2008) 43 Cal.4th 1059,
1067.) Aggravated assault qualifies as a violent felony only if the defendant
personally inflicted great bodily injury or personally used a firearm. (§ 667.5, subd.
(c)(8).) The indictment does not allege that appellant personally used a firearm or a
dangerous or deadly weapon. The indictment alleges that appellant and his
codefendant inflicted "serious bodily injury" upon the victim, but it does not indicate
whether the injury was personally inflicted by appellant. The codefendant could have
been the actual perpetrator of the assault, with appellant acting as an aider and abettor.
       The People also concede that the record of conviction is insufficient to prove
the requisite intent for aggravated assault under California law because the Tennessee
conviction may have been based on merely reckless conduct. At the time of
appellant's 1989 conviction, under Tennessee law a person could be convicted of
aggravated assault if he had "recklessly" caused serious bodily injury "under
circumstances manifesting extreme indifference to the value of human life." (Tenn.


                                            6
Code § 39-2-101, subd. (b)(1).) The Tennessee indictment alleges that appellant and
his codefendant "willfully, knowingly or recklessly" caused serious bodily injury to
the victim. In California mere recklessness is insufficient to constitute an assault.
(People v. Williams (2001) 26 Cal.4th 779, 788.)
       We do not accept the People's concession that the record of conviction is
insufficient to prove the requisite intent for aggravated assault under California law.
The trial court was entitled to consider the Tennessee indictment's aggravated assault
charge together with the robbery charge. (People v. Miles, supra, 43 Cal.4th at p.
1082 [admissible evidence from entire record of conviction may be considered].) Both
offenses were committed by the same persons against the same victim on the same
date. The trial court could reasonably infer that the aggravated assault was not merely
a reckless act but was intentionally committed for the purpose of facilitating the
robbery. The robbery charge alleges that appellant "unlawfully and feloniously did
make an assault upon" the victim. Accordingly, the record of conviction sufficiently
establishes the requisite intent for aggravated assault under California law.
                                          Remand
       The People "note[] that . . . appellant's Tennessee robbery conviction, along
with appellant's Oklahoma [conviction for assault and battery with a dangerous
weapon], would support his current three strike sentence." Nevertheless, the People
request that the matter be remanded to the trial court for retrial of the strike allegation
as to the 1989 Tennessee aggravated assault conviction. The People are entitled to
remand for this purpose: "[R]etrial of a strike allegation is permissible where a trier of
fact finds the allegation to be true, but an appellate court reverses that finding for
insufficient evidence." (People v. Barragan (2004) 32 Cal.4th 236, 239.)




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                                         Disposition
       The finding that appellant's 1989 Tennessee aggravated assault conviction
constitutes a serious or violent felony conviction within the meaning of the Three
Strikes law and section 667, subdivision (a) is vacated. The matter is remanded to the
trial court for resentencing or, at the prosecutor's election, retrial of the strike and
section 667, subdivision (a) allegations as to the prior aggravated assault conviction.
In all other respects, the judgment is affirmed.




                                                            YEGAN, J.

We concur:



               GILBERT, P.J.



               PERREN, J.




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                              Jacquelyn H. Duffy, Judge


                      Superior Court County of San Luis Obispo


                        ______________________________




             Mark R. Feeser, 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, Senior Assistant Attorney General, Kenneth C.
Byrne, Supervising Deputy Attorney General, Seth P. McCutcheon, Deputy Attorney
General, for Plaintiff and Respondent.




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