Filed 1/22/14 P. v. Grana CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E058371

v.                                                                       (Super.Ct.No. FVI1202837)

MARIO BENNY GRANA,                                                       OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Jules E. Fleuret,

Judge. Affirmed.

         Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

         Defendant Mario Benny Grana appeals his conviction on two counts of attempted

criminal threats. This case comes to us for review under People v. Wende (1979) 25

Cal.3d 436. Finding no error, we will affirm the judgment.
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                               PROCEDURAL HISTORY

       The information charged defendant with two counts of criminal threats (Pen.

Code, § 422, counts 1 & 2) and one count of assault with a deadly weapon, a knife (Pen.

Code, § 245, subd. (a)(1), count 3). The information alleged that defendant had one prior

serious felony conviction constituting a strike. (Pen. Code, §§ 667, subds. (b)-(i),

1170.12, subds. (a)-(d).)

       A jury convicted defendant of the lesser included offense of attempted criminal

threats as to counts 1 and 2. It was unable to reach a verdict on count 3, and that count

was dismissed on motion of the prosecution. In a separate proceeding, the court found

the prior conviction allegation true and held that the conviction, which occurred in

Illinois, constituted a strike under California law. The court sentenced defendant to a

prison term of three years eight months, based on a doubled aggravated term on count 1

and a consecutive doubled one-third the middle term on count 2; imposed appropriate

fines and assessments; and awarded appropriate presentence custody and conduct credits.

       Defendant filed a timely notice of appeal.

                                          FACTS

       On March 13, 2012, Lori McMillen and Karen Evers walked from their workplace

at the Adelanto School District office to a nearby Circle K market. As they approached

the market, defendant, who was crouched by some dumpsters, jumped up and began to

shout at them. McMillen heard him say, among other things, “You fucking bitches are

gonna fucking die,” and “I’m going to kill you.” Evers did not hear any threats at that


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time, just insults. The women continued walking toward the store and defendant walked

backward, in front of them, shouting obscenities and threats. McMillen saw him take

something silver out of his pocket. She thought it was a cell phone. Just before they

arrived at the store, defendant walked away from them, toward a park.

       The women entered the store, and McMillen told the store manager that there was

a very angry man outside and asked the manager to call the police. The store manager

went outside, but did not see anyone.

       As the women walked back toward the school district office, they saw defendant

sitting on a picnic table, 70 to 80 feet away from them. He began to shout at them again,

and McMillen heard him threaten to kill them. Evers heard only the obscenities.

Defendant suddenly got up and began to run toward them, threatening to kill them. Both

women were frightened and believed that defendant would actually attack them. Evers

called 911 on her cell phone. McMillen told defendant that he should leave because

Evers was calling the police and “they” would come after him and take his “stuff,”

referring to the belongings defendant had left on the bench. This seemed to make him

even angrier, and he continued to lunge toward McMillen, issuing threats.

       By that point, the women and defendant had moved into the street, into the first

lane of traffic. Juan Rosales was driving by with his girlfriend and her young brother.

When he realized that the women appeared to be in danger, Rosales made a U-turn,

stopped the car, and got out to help. He stood between defendant and the women and

asked defendant to leave. Defendant did not back off, but removed his shirt and put his


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hands as though he wanted to fight. Believing that defendant would attack him, Rosales

kicked defendant in the leg. A fight ensued, and after Rosales kneed defendant in the

face, breaking his nose, defendant pulled a knife out of his pants pocket. Rosales’s

girlfriend tossed Rosales a baseball bat she had taken out of the trunk of their car.

Defendant tried to hit Rosales’s girlfriend and struck at her with the knife, but she ran

away. Rosales hit defendant with the bat, and then ran off toward the Circle K.

Defendant pursued him with the knife, until a sheriff’s deputy arrived and intervened.

Deputy Galindo detained both men to determine which one was the aggressor.

       McMillen and Evers told Galindo what had happened. Galindo released Rosales

and arrested defendant. After defendant was advised of his Miranda1 rights, he denied

having threatened the women. He said he fought with Rosales because he was angry that

Rosales had punched him in the face. He said he pulled out the knife only after Rosales’s

girlfriend handed Rosales the bat. He denied having the knife in his hand as his pursued

Rosales. The deputy, however, saw the knife in defendant’s hand as defendant was

chasing Rosales.

                                       DISCUSSION

       We appointed counsel to represent defendant on appeal. After examination

of the record, counsel filed an opening brief raising no issues and asking this court to

independently review the record. We offered defendant the opportunity to file any

supplemental brief he deemed necessary, but he did not do so.


       1   Miranda v. Arizona (1966) 384 U.S. 436.

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       We have examined the entire record and have found no error. We are satisfied

that defendant’s attorney has fully complied with his responsibilities and that no arguable

issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; People v. Wende, supra,

25 Cal.3d at p. 441.)

       In reaching this conclusion, we considered whether defendant’s prior Illinois

conviction for reckless homicide constituted a strike for purposes of California’s three

strikes law, as mentioned by appointed counsel but not argued.

       “For a prior felony conviction from another jurisdiction to support a serious-felony

sentence enhancement, the out-of-state crime must ‘include[] all of the elements of any

serious felony’ in California. [Citation.] For an out-of-state conviction to render a

criminal offender eligible for sentencing under the three strikes law [citations], the

foreign crime (1) must be such that, ‘if committed in California, [it would be] punishable

by imprisonment in the state prison’ [citations], and (2) must ‘include[] all of the

elements of the particular felony as defined in’ section 1192.7[, subd.] (c) [citations].”

(People v. Warner (2006) 39 Cal.4th 548, 552-553.)

       Illinois defines reckless homicide as follows: “A person who unintentionally kills

an individual without lawful justification commits involuntary manslaughter if his acts

whether lawful or unlawful which cause the death are such as are likely to cause death or

great bodily harm to some individual, and he performs them recklessly, except in cases in

which the cause of death consists of the driving of a motor vehicle . . . in which case the

person commits reckless homicide.” (720 Ill. Comp. Stat. 5/9-3, subd. (a); see also


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People v. Testin (1994) 260 Ill.App.3d 224, 226.) Under California law, vehicular

manslaughter is defined as “driving a vehicle in the commission of an unlawful act, not

amounting to felony, and with gross negligence; or driving a vehicle in the commission

of a lawful act which might produce death, in an unlawful manner, and with gross

negligence.” (§ 192, subd. (c)(1).) For purposes of this statute, a person acts with gross

negligence when he or she “acts in a reckless way that creates a high risk of death or

great bodily injury” and “[a] reasonable person would have known that acting in that way

would create such a risk.” (CALCRIM No. 592.) Similarly, under Illinois law, a person

acts recklessly when “that person consciously disregards a substantial and unjustifiable

risk that circumstances exist or that a result will follow, described by the statute defining

the offense, and that disregard constitutes a gross deviation from the standard of care that

a reasonable person would exercise in the situation. An act performed recklessly is

performed wantonly, within the meaning of a statute using the term ‘wantonly’, unless

the statute clearly requires another meaning.” (720 Ill. Comp. Stat. 5/4-6.) A “high risk”

is the equivalent of a “substantial risk.” Accordingly, Illinois’ reckless driving statute

contains all of the elements of section 192, subdivision (c)(1). And, vehicular

manslaughter qualifies as a strike if the defendant was personally operating the vehicle

when the act leading to death occurred. (People v. Gonzales (1994) 29 Cal.App.4th

1684, 1688; see also 1192.7, subd. (c)(8); People v. Wilson (2013) 219 Cal.App.4th 500,

510.)




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       Here, defendant pleaded guilty to the charge that he caused the death of a person

while personally operating a vehicle under the influence of alcohol and while acting in a

reckless manner, performing acts likely to cause death or great bodily harm, specifically

running a stop sign, causing the vehicle he was driving to strike a home, causing the

death of a person in the home. Accordingly, the court properly found that the Illinois

prior conviction qualified as a strike prior.

                                       DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                              McKINSTER
                                                                               Acting P. J.

We concur:



RICHLI
                           J.



MILLER
                           J.




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