Filed 1/6/14 (Version first posted this date was incorrect and should be disregarded; this is correct version)

                                  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 LEDBETTER,

     Defendant and Appellant.


         In this first impression case, we decline the People's request for remand to
relitigate the truth of a prior conviction allegation. Appellant is lawfully sentenced to
prison for a term of 39 years to life and, even if the People can prove the prior on
retrial, no increase in sentence will result. We will not allow remand for an idle act.
         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 He
admitted personally inflicting 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 a 1989 Tennessee conviction for
robbery, a 1989 Tennessee conviction for aggravated assault, and a 2001 Oklahoma
conviction for assault and battery with a dangerous weapon. The court also found true

1
    All statutory references are to the Penal Code unless otherwise stated.
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 as a third striker, plus 3 years for
the 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 punishment on the 1989 serious
felony Tennessee conviction for aggravated assault.
       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). He does not challenge the
validity of the true finding on the Oklahoma conviction. As to the Tennessee robbery
conviction, we conclude that the evidence is sufficient. As to the Tennessee
aggravated assault conviction, we accept the People's concession that the evidence is
insufficient. We vacate the true finding on the Tennessee aggravated assault
conviction and affirm in all other respects. As indicated, the vacating of this true
finding does not affect appellant's 39-year-to-life prison sentence. We deny the
People's request that the matter be remanded for the purpose of retrying the strike
allegation as to the Tennessee aggravated assault conviction.
                          Rules re Prior Conviction Allegations
       "The People must prove all elements of [a prior conviction allegation] 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


                                             2
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
sustained its burden of proving the elements of the [prior conviction allegation]
beyond a reasonable doubt. [Citations.]" (People v. Miles, supra, 43 Cal.4th at p.
1083.)
                           Prior Tennessee Robbery Conviction
         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


                                             3
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.)
       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. "[O]ver 100 years ago [the California
Legislature] 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


                                             4
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"].)
       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.)
                    Prior Tennessee Aggravated Assault Conviction
       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


                                            5
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.
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.)
                                    Remand Vel Non
       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, as to the
Tennessee aggravated assault conviction, the People request that "the matter be
remanded to the trial court for the limited purpose of determining whether appellant
suffered a prior foreign conviction equivalent to a California 'strike' offense." The
People argue that "where a reviewing court finds that insufficient evidence supports
the 'strike' enhancement, the case should be remanded for retrial on the prior 'strike'


                                            6
conviction allegation because the double jeopardy bar does not apply to findings on
prior conviction allegations."
       "[R]etrial of a strike allegation is permissible where [as here] 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.) Just because retrial is
permissible does not mean the People have an unqualified right to retrial. We deny the
People's request that the matter be remanded for the purpose of retrying the strike
allegation as to the Tennessee aggravated assault conviction. If on remand the People
were able to prove that this conviction qualifies as a strike, appellant's sentence of 39
years to life would remain unchanged. The People correctly note that the Tennessee
robbery and Oklahoma convictions qualify as strikes, and the present conviction of
assault with a deadly weapon with personal infliction of great bodily injury constitutes
"strike three." Pursuant to section 667, subdivision (a), an additional five years is
mandated for each of these prior serious felony convictions. The trial court stayed
sentence on the section 667, subdivision (a) prior serious felony Tennessee aggravated
assault conviction. Thus, the court's erroneous true findings on this conviction did not
add one day to appellant's sentence. The People do not explain why they want an
opportunity to retry the strike allegation when that allegation cannot affect the length
of appellant's sentence.
       It would therefore be an idle act and "a waste of ever-more-scarce judicial
resources" to remand the matter for the purpose of retrying the Tennessee aggravated
assault strike allegation. (In re Z.N. (2009) 181 Cal.App.4th 282, 300.) Appellant's
sentence would remain the same irrespective of the result of the retrial. "The law
neither does nor requires idle acts." (Civ. Code, § 3532.)
       Our decision not to remand the matter is consistent with People v. Alford (2010)
180 Cal.App.4th 1463. There the defendant requested that the matter be remanded to
the trial court for a new sentencing hearing to remedy a section 654 problem. The
appellate court denied the request: "[Remand for this purpose] would mean pulling


                                             7
defendant out of his prison programming and busing him to [the trial court] for a new
sentencing hearing that will not change his actual prison time. The futility and
expense of such a course militates against it." (Id. at p. 1473.) The appellate court
imposed the sentence that the trial court "undoubtedly . . . would have imposed" and
stayed execution of that sentence. (Ibid.) The appellate court noted that it was
exercising its "authority to modify the judgment" pursuant to section 1260. (Ibid.)
       Section 1260 provides: "The court may reverse, affirm, or modify a judgment
or order appealed from, or reduce the degree of the offense or attempted offense or the
punishment imposed, and may set aside, affirm, or modify any or all of the
proceedings subsequent to, or dependent upon, such judgment or order, and may, if
proper, order a new trial and may, if proper, remand the cause to the trial court for
such further proceedings as may be just under the circumstances." The power to order
remand "for such further proceedings as may be just under the circumstances," in our
view, permits us to not remand to secure the same goal, i.e., justice under the
circumstances.
       Here, we are exercising our authority to preclude retrial because "[t]he futility
and expense" of remand for the purpose of retrying the Tennessee aggravated assault
strike allegation "militates against it." (People v. Alford, supra, 180 Cal.App.4th at p.
1473; see also People v. Moore (2006) 39 Cal.4th 168, 176 ["Section 1260 evinces a
'legislative concern with unnecessary retrials where something less drastic will do' "].)
                                       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. In all other respects the
judgment, including the state prison sentence of 39 years to life, is affirmed. The trial
court is directed to file an amended abstract of judgment that deletes any reference to




                                            8
the Tennessee aggravated assault conviction. The trial court is further directed to
transmit a certified copy of the amended abstract of judgment to the Department of
Corrections and Rehabilitation.
              CERTIFIED FOR PUBLICATION.



                                                        YEGAN, J.
We concur:


              GILBERT, P.J.


              PERREN, J.




                                           9
                              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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